US Supreme Court's latest term: Defending Free Speech and Big Business

By Yasser Latif Hamdani

It is instructive for lawyers everywhere to read the media commentary on the performance of Bush appointee Justice Roberts' court in the term that just ended.

I was especially struck by New York Times' commentary yesterday. Adam Liptak wrote in the aforesaid newspaper:

The Supreme Court term that ended Monday was marked by accomplishment and anticipation. The court continued its work on two signature projects of Chief Justice John Roberts: defending free speech and curbing big lawsuits. And it dropped occasional hints about the blockbusters on the horizon... In cases involving the nation’s largest private employer, Wal-Mart, and the nation’s second-largest cellphone company, AT&T Mobility, the court tightened the rules for class actions and made it easier for companies to do away with class actions entirely by using form contracts. All of the decisions this term were scrutinized for clues about the arc of the Roberts court as it settles into a period of consolidation and awaits a series of colossal cases, notably the challenges to the health care law championed by President Barack Obama. This term was significant, but the next one may include the most important clash between the Supreme Court and a president since the New Deal.

It is interesting to also note that conservatives - and not liberals- in the US champion the first amendment specifically on free speech.

“For the conservatives,” said Lee Esptein, a professor of law and political science at Northwestern, “the First Amendment continues to trump other values, especially if they can help business in the process.”
On Monday the court agreed to hear another First Amendment case of interest to the business community, this one concerning the Federal Communications Commission’s broadcast indecency rules.
Business groups said their success in the court during the term was mixed, and the numbers support them, as the court repeatedly ruled for plaintiffs in employment and securities cases.
But business groups won the most consequential cases, including what a U.S. Chamber of Commerce lawyer called “the triple crown of this year’s business docket.”
The lawyer, Robin S. Conrad, executive vice president of the chamber’s litigation unit, was referring to the Wal-Mart and AT&T cases, along with one rejecting a suit from six states against several power companies over carbon dioxide emissions.
“These three cases,” she said, “were easily the most important business cases of the term.”
The justices decided about 20 percent of their cases on 5-4 votes, which is in line with recent terms. But the number of 5-4 decisions in which the court’s four liberals found themselves on one side and its four conservatives on the other was high: Twelve of the 14 closely divided cases were configured that way, with Justice Anthony Kennedy casting the decisive vote.
Kennedy, the court’s swing justice, voted with its more conservative members in those dozen cases two-thirds of the time.
A theme ran through those decisions, said Judith Resnik, a law professor at Yale.
“The same majority of five has imposed new barriers to claimants,” she said, referring to the Wal-Mart and AT&T cases, along with ones about prosecutorial immunity and injury suits against the makers of generic drugs. As a consequence, she said, “the doors are closing in both federal and state courts.”

Washington Post took a similar view in its op-ed on the issue. In an article titled "Supreme Court's continuing defense of the powerful", E J Dionne Jr wrote:

The United States Supreme Court now sees its central task as comforting the already comfortable and afflicting those already afflicted.
If you are a large corporation or a political candidate backed by lots of private money, be assured that the court’s conservative majority will be there for you, solicitous of your needs and ready to swat away those pesky little people who dare to contest your power.

One would imagine that the true position and role of a Supreme Court in a nation state is to preserve civil rights of the weak and ensure full measure of constitutional safeguards to minorities in that nation state. Historically that is precisely what the US Supreme Court has done. It has often gone beyond and effected social change when the electable officials were unwilling or unable to do so. Now it seems that the US Supreme Court is under the sway of reactionaries.

Comments are welcome.