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Roberts Court Wraps up Term, Leaving Significant Conservative Mark

June 28, 2011 at 12:00 AM EDT
The Supreme Court wrapped up its final cases Monday, completing a year of action in which its conservative majority left a significant legal mark. Gwen Ifill discusses the major decisions that came out of the Roberts court this term with The National Law Journal's Marcia Coyle and Tom Goldstein, founder of

GWEN IFILL: The Supreme Court wrapped up its final cases yesterday, completing a year of action in which its conservative majority left a significant legal mark. In several instances, the high court favored businesses over consumers and employees, most notably in throwing out a class action lawsuit against Wal-Mart.

It was also a big free speech term for the court, as justices voted to allow protests at military funerals, roll back campaign finance laws, and reject a ban on violent video games.

Here now for a look at the Roberts court this year past, NewsHour regular Marcia Coyle of “National” — of “The National Law Journal,” and Tom Goldstein, founder of the website

Let’s — we can divide this year up in a pretty — in pretty big chunks.

Starting with the free speech cases, Marcia, how significant were they in moving the ball?

MARCIA COYLE, “The National Law Journal”: OK.

Well, there were four cases that I think you would call basic First Amendment cases. And that seems like a large number, but this court has had generally between two to three First Amendment cases almost every term in recent years. This court is also a very strong First Amendment speech court.

Put aside for a moment the campaign finance cases. Generally, you will find justices on both sides of the ideological divide protective of speech under the First Amendment. Three of the cases — you mentioned the military protests, the violent video game case, and then another case that Which, I think, a very significant case. It involved the court’s first data mining venture here.

The court looked at a Vermont law that prohibited pharmacies from selling doctors’ prescription, prescripting information to drug companies and data mining companies. It showed, I think, that if you can fit your challenge, your claim into a box for the Supreme Court that says, this is a regulation of speech or a restriction of speech, you’re going to find a majority on this court coming down very much in favor of the First Amendment.

Tom was able to do that, the way. He actually argued that case successfully. And I know he can talk about its ramifications.

GWEN IFILL: Why don’t you do that?


TOM GOLDSTEIN, Well, it’s a case about speech by businesses.

And so, in an era in which there’s more and more companies involved in sharing more and more information, lots of privacy concerns, it was the court’s first foray into that balance. And the Supreme Court said, we are really concerned about privacy, but we’re not going to let the government pick and choose who gets to speak. So, if the government is going to allow some — is going to use the information itself to talk to doctors, well, then companies have to be able to talk to doctors, too.

But we’re going to see a lot more of these cases over the years, as there’s more and more technology, more and more uses of information, and the government trying to regulate companies, and also to protect privacy at the same time.

GWEN IFILL: And even information that many people might find objectionable, as in the case of these military funerals or in the case we talked about last night of the violent video games, the court would still err on the side of free speech.

MARCIA COYLE: And what’s also very interesting, Gwen, as Tom said, is the court is being drawn more and more into looking at First Amendment, privacy rights, and the new technology. The violent video game was a good example of that — and not only under the First Amendment, but, next term, the court already has taken a case under the Fourth Amendment that has to do with FBI agents putting a GPS tracking device on a car for long-term surveillance and whether that required a warrant, which they didn’t have.

So, the new and emerging technology is coming to the court more and more. I did put aside the campaign finance cases, because they are — under this court, I would say, right now, I believe the Roberts Court has rejected campaign finance regulation in five cases. And it has been almost always by 5-4 decisions.

You have a very clear division of how the justices view campaign finance regulation and the role of money in elections. The conservative majority sees money as speech, whereas the more liberal wing of the court sees money as money and can be regulated.

GWEN IFILL: Not changing.

This court has a reputation, Tom, as being pro-business, not least of which because of the Wal-Mart case and the AT&T class action case, which, in both cases, the corporations benefited. Is that a fair rap on the court?

TOM GOLDSTEIN: Well, the court had about 35 or so cases that implicate the business community this term, and the business community won 20 of those. So, it’s not overwhelming.

They won probably the most important cases, the ones that you mentioned about class actions. But to take a counterexample, the single biggest civil rights case of the term, the employee won, where the court said that, if an employee in a big company is the victim of discrimination by a supervisor, you can sue the company. And that was a big fight in civil rights law.

GWEN IFILL: And is that something in which — which makes people think that maybe the court is open in specific cases to perhaps other kinds of civil rights challenges?

TOM GOLDSTEIN: I think that’s right.

Employees have, for example, won, overwhelmingly, retaliation cases in the Supreme Court. I would say that, if you want to understand the cases, if it’s extremely close, and the statute involved is kind of vague, the court is going to tend towards the defense, because it’s hostile to litigation. But if Congress writes a clear law, then plaintiffs have really no difficulty winning.

GWEN IFILL: We have — the two newest justices made themselves heard on the court this year. That’s Justices Sotomayor, who took over — who came on the court last year, and Justice Elena Kagan.

Did they leave a mark?

MARCIA COYLE: I think they did. And we’re learning more and more about them.

First of all, they are both very active questioners from the bench — very different styles. Justice Sotomayor is a very careful, deliberate, and persistent questioner. Lawyers do not want to try to dodge her questions.

Justice Kagan, you can almost see why students in her classes probably loved her as a teacher. She brings a sense of humor to the questions in her hypotheticals.

Justice Sotomayor is emerging as a voice, I think, in the criminal law area. She had an important decision this term on Miranda rights for minors. She said that age has to be a factor in the consideration of whether minors get Mirandized when they’re being questioned.

Justice Kagan had two very important dissents. And they were heavyweight dissents for a freshman justice. She was the one who dissented — wrote the dissent in the campaign finance decision yesterday. And she went toe-to-toe with Chief Justice Roberts, point by point with a certain flare, a sense of humor, none of the underlying, say, nastiness or edge that sometimes we see in the clever writing of Justice Scalia.

So, she’s going to be a force to be reckoned with.

GWEN IFILL: Tom, we look at this court and we see a couple things which seem to be consistent, which is the preponderance of narrowly-split decisions, what seem — what we — the laity analysts say are just Republicans vs. the Democrats on the court, which is, of course, not necessarily the case.

But, also, we pay a lot of attention to certain big cases, but there are other cases which get less attention, but which have huge impact on people’s lives.

TOM GOLDSTEIN: That’s right.

So, 50 percent of the cases that the court decides are actually unanimous. One out of five is 5-4. And some cases just fly below the radar screen. So, a couple of examples would be, in the criminal law area, the Supreme Court said that someone who wanted access to DNA testing to try and prove that they were innocent when the technology has evolved over time could file a lawsuit to try and get access to that information.

And another one that’s really important in a lot of criminal cases involving, say, drug tests or DUI, where the government is relying on a machine test for was there alcohol or drugs involved, the Supreme Court, by a narrow majority this term, said that you were going to have to bring into court the technician who operated the machine. Otherwise, you’re violating the defendant’s right to confront his accuser.

GWEN IFILL: How often was Justice Kennedy still the pivot point in these kinds of cases?

TOM GOLDSTEIN: Well, of the 5-4 cases, all but two were on that ideological axis you described. And he was in the majority of every one. So, he’s the ideological center of the court.

He went — and this has been consistently true. About seven out of 10 times, he will be with the conservatives. Overall, Justice Kennedy was in the majority in 94 percent of the cases this term. So, it was almost impossible to win a case without his vote.

GWEN IFILL: As court-watchers, briefly, tell me what you’re watching for in the pipeline.

MARCIA COYLE: I’m watching health care litigation, the challenge to the health care reform act. That may very well get to the court next term.

I’m also watching Arizona’s very restrictive immigration law. I think it’s known as SB-1070. That, I think, will also get to the court next term — less so — not quite sure, Proposition 8, the same-sex marriage challenge in California. And the Defense of Marriage Act challenge also could get there.

GWEN IFILL: Anything left over for you, Tom?

TOM GOLDSTEIN: Affirmative action is going to be back at the Supreme Court. And they also agreed this week to take up indecency on television.


Well, we will be watching for all of that with both of you. Thank you both very much.


MARCIA COYLE: My — my pleasure.