January 4, 2011

Us and Them - The Supreme Court in 2011

Supreme Court 2011

Artist: Dana Varkoutere/AP Published in Education Week, 10/20/10

The United States Supreme Court is of vital interest to anyone who uses, provides, or pays for special education. That means all of us. What follows is a summary of articles about the Court during 2010 and what that may mean in 2011. One cannot overstate the degree of worry about how the Supreme Court may decide any future special education cases that come before it.

Chief Justice John G. Roberts Jr. is the current Chief Justice and leader of the court. Recent rulings have been criticized for being “sweeping and often polarizing decisions.” (Justices Long on Words but Short on Guidance, Adam Liptak, The New York Times, 11/18/10). Another concern, however, is the quality of the court’s craftsmanship in making its decisions, which are often limited or ambiguous to the lower courts, as well as overly long. Important decisions from the 1950s were less than 4,000 words. Today’s decisions can reach 47,000 words, lack clarity, and fail to provide clear guidelines to the lower courts. One suggested reason is the court’s effort to reach unanimous decisions, though that has been less and less the case during 2010. Some decisions have weakened the lower courts, allowing those judges to throw out cases based upon their “experience and common sense”, and causing confusion and disarray among judges and lawyers (The Duke Law Journal, Arthur R. Miller, October 2010.) The Roberts court is also making its mark in false unanimity. In 77% of the 2010 rulings, there was at least one concurring opinion, or when justices write their own opinions to express worry about some aspect of the majority opinion. Concurrent decisions are not binding but used by most in the lower courts.

Today’s court decides approximately 75 cases a term, down from about 150 during the mid-1980s. Available evidence suggests that the clerks to the Justices produce first drafts which the justices then edit. This ghost writing can be an abdication of judicial authority and result in ambiguous prose. Keeping decisions as narrow as possible, with little precedential value, frequently occurred during 2010.

Another aspect of the Roberts Court is its receptive ear to business interests (Justices Offer Receptive Ear to Business Interests, Adam Liptak, The New York Times, 12/19/10). The U.S. Chamber of Commerce often files amicus briefs in most major business cases. The side it supported last term won 13 out of 16 cases. The percentage of business cases accepted by the Court and are won has grown during the five term Robert’s Court. The last five years of the Rehnquist court, ending in 2005, yielded a 46% win by businesses, compared to a 61 percent win before the Roberts’ Court in the subsequent five years. One reason suggested for this rise is a new breed of lawyers who specialize in Supreme Court advocacy. Many are veterans of the United States solicitor general’s office, which represents the federal government in cases before the court. These lawyers are specialists in persuading the Court to hear business cases and to rule in favor of their clients. (This is important to those in education, in that public school education and its related areas are one of the major businesses in the United States.) The U.S. Chamber of Commerce discourages the Court from taking cases that may negatively impact on business, arguing that a lawsuit against Walmart had “grave risks for American business”, that lawsuits against power companies over carbon dioxide emissions “has potentially disastrous implications for the U.S. business community.”, and that employment discrimination claims should be forbidden because “it cost over $120,000 just to defend a wrongful discharge claim.” Positions supported by the chamber won 68% of the time in the Roberts’ Court as compared to 56% in the Rehnquist Court. However, an examination of all information does not definitively prove the Roberts’ Court to be pro business, though it is clearly focused on business issues.

Retired Justice John Paul Stevens, age 90, recently published a book about the personnel changes on the Court (Stevens Settles Legal Mystery in Frank Essay, Adam Liptak, The New York Times, 11/28/10). Stevens wrote that “regrettable judicial activism” had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics, and tinged with hysteria. Insights from his decades of experience on the bench are applicable to cases involving the individual rights of people versus the rights of business.

Finally, as we contemplate 2011, there is the matter of the Tea Party and Justice Scalia (Justice Scalia and the Tea Party, New York Times Editorial, 12/19/10). Justice Antonin Scalia is set to be the speaker at the January 2011 Conservative Constitutional Seminar, sponsored by the Tea Party. The meeting is to take place behind closed doors, with give and take between the participants. The U.S. Supreme Court is the only federal court not covered by the Code of Conduct for United States Judges, which would prohibit Scalia from becoming involved with an organization with an extremist view of the Constitution whose cases may come before him on the bench. If he goes through with his participation with the Tea Party movement, strong reasons arise to doubt his impartiality on any topic discussed at the Seminar. It remains to be seen if he attends.

U.S. and Them- the U.S. Supreme Court and ourselves. The present court is rigged against people and does not appear to have an interest in civil rights issues, including special education. There is no advocate for our interests at the federal level. We must remember this with every child we work for, and every family we advise.