Roberts Court as the Second Lochner Era

In examining some of the recent decisions handed down by the SCOTUS i have to feel like we might be witnessing history. I dont mean the positive jackie robinson breaking the color barrier history but the bad tanks rolling into Hungary kind. The Roberts court has issued and will continue to issue a number of important 5-4 decisions that will gut or otherwise roll back the rights and protections american's believe that they enjoy. The decisions of the Roberts Court will continue to do injustice until kennedy or one of the solidly right wing justices retires. However, the Courts decisions have fallen out of step with the general movement of the population and the Roberts Court will end up looking as out of place during its time as the Lochner Court did preceding and during the New Deal.

I think that it is very interesting that the conservative judicial reign began just as the conservative political reign came to a screeching halt. The political shift of the SCOTUS has been steadily rightward since the beginning of the Rhenquist Court and has reached new hieghts with the Roberts Court. Its almost a cruel twist of fate that we couldnt get rid of Bush quite early enough to prevent him from leaving his lasting impression on the court's balance.

The narrow 5-4 the majority commonly commands has led to several decisions that i think history will not look kindly upon. Included would be, District Attornies Office v. Osborne, Gross v. FBL Financial Services, Davis v. Federal Election Commission, Seattle Schools Case, to name a prominent few. In addition Roberts dissent in Caperton v Massey Coal is another decision likely to elicit criticism for a long time to come. Each of these cases exemplifies Jonathon Turley's description of roberts,

In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

The problem of course is that the current Republican Party is incredibly unpopular. By reveling in conservatism Roberts and his conservative cohorts place the court in opposition to the general desires of the population. Lets not kid ourselves either, SCOTUS decisions are often policy based and policies are often a reflection of politics. For example conservatives generally have a deference to authority, a pride in stability, a preference for concrete rules, essentially combining into a formalist approach favoring procedural due process over substantive due process. I think these traits are strikingly evident in two of the above mentioned decisions, Massey and Osbourne.

In his Massey dissent Roberts writes,

Unlike the established grounds for disqualification, a “probability of bias” cannot be defined in any limited way. The Court’s new “rule” provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.

Roberts makes the assertion that allowing for more claims of bias will undermine the confidence that people have in the judiciary. He seems to be missing the big issue in this case, the fact that a judge sat on the case of a man who spent three million dollars to get him elected. Thats a lot of money in a judicial election where the incumbent lacks real name recognition and the electorate lacks sophistication on legal issues. Its hard to imagine that the money didnt move votes and nobody believes that the judge was impartial. these circumstances are extreme and unique. Yet Roberts has 40 horrible outcomes he predicts will result from the decision. The problem is that in this case, the judge really appeared to be biased and didnt get off the case. IMO TGM's Scott Lemioux has it correct when he wrote that,

Because of its fairly minimalist nature, it will take a while to fully gauge the effects of today's ruling. To the extend that today's decision creates disincentives to buy judicial elections and increases incentives for judges to recuse themselves when there is a glaring appearance of bias, it must be considered salutary.

We see the same disregard for the substantive justice in favor of form and wishful assertion when Roberts denies the ability of a prisoner, William Osburne, to pay for his own dna tests in an effort to show his innocence.

At the same time, DNA testing alone does not always resolve a case. Where there is enough other incriminating evidence and an explanation for the DNA result, science alone cannot prove a prisoner innocent. See House v. Bell, 547 U. S. 518, 540–548 (2006). The availability of technologies not available at trial cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt. The dilemma is how to harness DNA’s power to prove innocence without unnecessarily overthrowing the established system of criminal justice.

Roberts central assertion here is that if they allow this guy to have DNA testing they have to allow everyone to have DNA testing. That jury verdicts will cease to have meaning because they can be second guessed by DNA. Citizens will think that the system isnt perfect because innocent people get convicted. This assertion is simply wrong. Allowing testing, especially if its on their own dime, will only improve confidence in the system. Allowing the innocent to remain behind bars in order to preserve the system illustrates a commitment to form and procedural due process. rather than substance. The system and procedure must be protected for its own sake instead of being protected because it provides real protections.

Roberts opinion in the Seattle Cases fits this line of thought as well. His oft quoted soundbyte -- "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race[.]" -- exhibits a fundamental rejection of the complexity of racial inequity in this country. To simply proclaim everyone as being equal will not make it so. To provide entirely equal procedural protections wont help if minorities are never in a position to use them. Imagine everyone has to fill out the same forms for a job but the minority cant read the forms and the white people get half the answers from their parents. Same forms and on their face not biased but the minorities are at a huge disadvantage.

Taken together the body of law left by the Roberts Court will be one of the most business, government, wealthy, powerful, friendly in history. All of this goes against what the general public would most likely want. People want the innocent to be let out of jail and they want the judges who receive massive campaign contributions to recuse from the contributors cases. While racially oriented programs are much less popular they served the important purpose of helping to level out a structurally titled playing field. People dont want millionaires to simply be able to buy elections. People generally frown on allowing discrimination against the elderly. The list goes on and on.

While it may be cliche the arc of history bends towards justice and the Roberts Court does not seem to be bending that way. This indicates they are likely to stick out as a Court in opposition to the felt necessities of the time just as the Lochner Court does. The biggest problem is that we are stuck with the 5-4 split until Kennedy retires and a left of center judge is placed in that seat. only then does the court step back from the dismantlement of the warren courts constitutional protections.