As discussed in a number of previous posts, the Roberts Court has demonstrated its conservative ideological bent, striking down laws passed by Congress and demonstrating a willingness to ignore long-standing precedent. It reached out last term in the Gross age discrimination case to decide an issue that hadn’t been briefed and changed the law in a way that will make it much harder for older workers to prove that they were discriminated against in the workplace. In the Ricci fire fighters case, the Court reached out to decide the case on the merits – even though no employee had actually been injured — so that it could reach the merits and change the law with respect to proving discrimination in so-called disparate impact cases. And, in the recently argued Citizens United case, the Court re-opened the briefing in the case to re-visit what had been a settled question about whether regulating corporate expenditures in candidate elections is constitutional.
Will this trend continue? And what does this mean for President Obama’s initiatives on health insurance reform? Climate change? Financial regulatory reform? Asnoted in Adam Liptak’s article in yesterday’s New York Times, the Court’s docket this term includes a number of cases likely to signal its future willingness to support government intervention to address structural problems in our economy. In Free Enterprise Fund v. Public Company Accounting Oversight Board, a case growing out of the Enron debacle, the Court will consider the scope of Congress’ power to delegate regulatory responsibility to independent regulatory boards. The issue in Jones v. Harris Associates, concerns the role of courts in regulating executive compensation for mutual fund investment advisers. And in Milavetz, Gallop & Milavetz v. United States, the issue concerns the scope of a federal law concerning lawyers’ advice to clients considering bankruptcy. Dry? Perhaps. But what we learn in these cases, may well signal how far the Court is willing to go in supporting or, perhaps more likely, frustrating, efforts by the Administration and Congress to address serious structural problems in our economy.
You think Justices’ legal ideology matters? Stay tuned.