Los Angeles Times
Justices have been siding with workers, underdogs
By David Savage
March 13, 2011

Although the Supreme Court is often viewed as pro-business and conservative, it has taken the other side in several recent cases. Observers call it a useful reminder that the court isn’t predictable.

Reporting from Washington

The Supreme Court, often described as conservative, divided and pro-corporate, has been sounding different notes in recent weeks.

The justices have been unanimous, or nearly so, in dealing defeats to employers and to corporations. They have also taken the side of hard-luck plaintiffs who were mistreated by the government.

Twice recently the court ruled for fired workers and expanded the reach of anti-discrimination laws. It revived an injured motorist’s suit against Mazda, refusing to shield automakers from safety claims. The justices rejected a corporation’s claim of “personal privacy,” and they twice ruled for prisoners, one who had been abused and another who said he was rehabilitated.

They even bent their rigid rule on deadlines for legal appeals to give the “benefit of any doubt” to disabled war veterans. And they gave a death row inmate a new right to seek DNA evidence that he says could prove his innocence.

So, is this the unified, modest and middle-of-the-road court that John G. Roberts Jr. spoke of when he became chief justice five years ago? Or is this just a brief truce before the ideological wars resume later in the spring?

Legal experts say they see no fundamental change, but they call the recent decisions a useful reminder that the court is not as predictable as some have suggested.

It “demonstrates the court isn’t reflexively pro-corporate and conservative,” said Washington lawyer Thomas Goldstein. He called the rulings involving the fired workers and the auto safety suit “very significant.”

“The term so far explodes the most extreme form of the ‘pro-corporate’ myth,” said Roy Englert, an attorney who has won and lost business cases in the high court.

The U.S. Chamber of Commerce has had one win and four losses so far this term. “It’s not surprising to me,” said Robin S. Conrad, who heads the chamber’s litigation center. She discounts “claims of the court’s pro-business bias” as “simplistic” and inaccurate.

Others caution it’s still early in the court’s calendar. The justices have announced rulings in only 26 cases, about a third of the total, and its most contentious cases are often decided in June.

Doug Kendall, president of the Constitutional Accountability Center, has criticized the Roberts court for its pro-business leanings, and he doubted the recent rulings were the start of a new trend. “We have to wait and see what the court does in the most contested areas like arbitration and campaign finance,” he said.

Business and consumer-rights advocates are closely watching two cases on class-action suits. One of them, from California, tests whether cheated consumers can unite in a class-action suit. The other tests whether Wal-Mart can be sued by more than 1.5 million women who once worked there.

And some patterns are unchanged this year. Since Jan. 19, the court has decided seven appealed cases from the U.S. 9th Circuit Court of Appeals in San Francisco. Six resulted in unanimous reversals, and the other was reversed by an 8-1 vote. Most of these were criminal cases in which the high court rejected a liberal ruling from the 9th Circuit but did so with the votes of its liberal justices: Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

Last week, however, the chief justice and Justice Antonin Scalia signed on to Ginsburg’s opinion giving a Texas death row inmate a new right to sue for testing of DNA evidence that he says could prove his innocence.

The 1st Amendment’s protection for free speech has been a regular winner in the Roberts court. Last year’s 5-4 ruling giving companies and unions a free-speech right to spend money on campaign ads fueled the complaints of a pro-corporate bias.

But this month’s free-speech ruling in favor of funeral picketers undercuts the notion that these decisions reflect the personal sympathies of the justices. The father of a dead Marine had sued because he said he was deeply offended by publicity-seeking protesters who turned his son’s funeral into a “circus.” The picketers carried anti-military and anti-Catholic signs outside the family’s Catholic church. Signs read “Pope in hell” and “Priests in hell.”

Yet the justices, including its conservative Catholics, sided with the protesters and rejected the jury verdict in the father’s favor. The 1st Amendment “protects even hurtful speech,” the chief justice said, and “that choice requires that we shield” the protesters.