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Veteran Supreme Court Reporter Analyzes Roberts Court's Form Of 'Judicial Activism'

PHILADELPHIA - Does the U.S. Supreme Court under Chief Justice John G. Roberts Jr. engage in judicial activism? Yes, according to a reporter who has covered the high court for more than 50 years. But, he says, that's not a negative quality, or unusual. And he has a pretty narrow definition of "activism."

Lyle Denniston, who covers the court for SCOTUSblog, spoke at a July 6 Supreme Court Term in Review luncheon program at the National Constitution Center here.

"There are positive qualities to judicial activism," he told the audience. "It's not a negative term."

Denniston said the Roberts Court, even in its most controversial rulings, follows precedent.

One of the court's more controversial rulings this term involved a California ban on the sale of violent video games to minors (Brown v. Entertainment Merchants Association, No. 08-1448 [enhanced opinion available to subscribers / unenhanced version available from lexisONE free case law]). In a 7-2 ruling, the court said the First Amendment forbids legislatures at all levels of government to pass laws to deny children of any age access to violent video games.

"This is the product of an ongoing campaign on the court against the idea of creating new free speech exceptions," Denniston said, noting that the court had previously ruled 8-1 against a law banning the selling of videos depicting cruelty to animals (United States v. Stevens, No. 08-769 [enhanced version / unenhanced version]).

"It was bold, it was innovative, to some people it was disgusting," Denniston said of the video games ruling.  "But it was not activism."

The court's bold or innovative use of prior precedent, such as the video games ruling or the ruling allowing anti-gay groups to protest at military funerals (Snyder v. Phelps, No. 09-751 [enhanced version / unenhanced version]), should not be considered activism, Denniston said. Nor should it be considered activism if it appears the court is pursuing an agenda, because the court is in charge of its own decision docket and the way it thinks judicial resources should be spent. It is also not activist, he said, for the court to reach results that look like they favor one sector of society.

"Progressive groups are apoplectic these days about how the Roberts Court is supposedly the captive of Big Business and wealthy people, but that is not much different from the days when the Court regularly ruled for criminal suspects, or for minorities," Denniston wrote in his Term Review on SCOTUSblog. "Judges, too, come to the bench with a sense that some things in society need remedying, and that some of those are entirely fit for judicial resolution."

Still, he said a "developing trend" on the Roberts court is that it is activist when it comes to deciding more than is constitutionally necessary in cases.

"I'm talking about when a court decides a case at a broader level than they need to," Denniston said. "That's activism of the purist form."

As an example, he cited the Citizens United v. Federal Election Commission (No. 08-201 [enhanced version / unenhanced version]) case from the court's last term, in which the court reached "way out" to articulate a new concept of corporate free speech, Denniston said.  In Citizens United, the court in a 5-4 decision made it possible for corporations and public entities to spend unlimited amounts of cash to support or attack a political candidate.

In its 5-4 decision in Wal-Mart Stores Inc. v. Dukes (No. 10-277 [enhanced version / unenhanced version]) in this term, the court negated a class action filed by more than 1 million female Wal-Mart employees who claimed they were victims of gender discrimination. Denniston said the court inserted a question that was not briefed: whether the case could proceed as a class action under Federal Rule of Civil Procedure 23(a)(2). The court found the women had too little in common to qualify as a class.

"The court added that question, I think, to end the case," said Denniston.

In another 5-4 case this term limiting class actions, the court held that companies can ignore state contract law guaranteeing consumers a right to class action suits by placing a clause barring such actions in their contracts (AT&T Mobility v. Concepcion, No. 09-893 [enhanced version / unenhanced version]).

In his Term Review on SCOTUSblog, Denniston listed several examples where he said the court decided a case on a broader legal basis than was necessary, several involving "the virtual embodiment of the tendencies of the Roberts Court - Anthony M. Kennedy."

In one example, Denniston said, Justice Kennedy suggested in a case involving former Attorney General John Ashcroft that Cabinet officers should have a special kind of immunity that would insulate them from lawsuits, even if the constitutionality of their conduct had come into question (Ashcroft v. al-Kidd, No. 10-98 [enhanced version / unenhanced version]).

Chief Justice Roberts "reached eagerly for a broad constitutional ruling in the course of deciding what had seemed like a minimalist dispute over the bankruptcy law rights of the estate of the former topless performer Anna Nicole Smith," Denniston wrote in another example (Stern v. Marshall, No. 10-179 [enhanced version / unenhanced version).

"At times, members of the Roberts Court would add material to their opinions that, while totally unnecessary to support the result, was offered gratuitously in order to answer criticism they got from dissenting justices," Denniston wrote in his term review.

In one exception, Justice Antonin Scalia, who Denniston said strongly believes class actions are violations of the Due Process Clause, didn't mount that soap box in writing the majority opinion in the Wal-Mart case.

"Perhaps he could not hold five votes for such an unnecessary constitutional essay," Denniston wrote. subscribers can access briefs, pleadings and motions in this case.

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