Panel discusses Supreme Court

U.S. Supreme Court Chief Justice John Roberts firmly established the court’s identity this term as “The Roberts Court” by siding with the majority in politically sensitive decisions, according to a panel of legal experts.

“What a difference a year makes,” said UC Irvine law professor Rick Hasen, who moderated the panel’s discussion Tuesday during the university’s second annual Supreme Court term review.

Last year’s panel focused on what would happen in this most current term, and according to the legal minds on the panel, the Supreme Court did not disappoint.

Four of the five panelists — Pepperdine University law professor Robert Pushaw was the dissenting voice — agreed that Roberts’s siding with the majority on Arizona’s immigration law and the federal Affordable Care Act raised the judicial branch’s profile with the public and established the chief justice as somewhat of a swing vote.

The other panelists were Wall Street Journal reporter Jess Bravin, UCI law professor Jennifer Chacón, UCI Law School Dean Erwin Chemerinsky and National Law Review Chief Washington Correspondent Marcia Coyle.

A video of the discussions is available on YouTube.

“I think this was ultimately a year of preserving institutional legitimacy through a sort of surface moderation that I think doesn’t really attempt to hide the deeply conservative underpinnings” of the court, Chacón said. “I’m not really sure what this era is or what it portends. I think we see plates shifting and we see the Earth shaking or beginning to shake but it’s not clear where we’re going to land.”

Following the 5-4 decisions in 2000’s Bush v. Gore case and 2010’s Citizens United ruling that allowed for unlimited fundraising for political campaigns, pundits and the public saw politics gaining considerable influence in the court’s decisions, which some argued undermined its legitimacy.

A few panelists argued that Roberts’s ruling to uphold the Affordable Care Act, or “Obamacare” as it is derisively called, was an attempt to regain the trust of an increasingly polarized and skeptical citizenry.

The court “spoke with greater consensus than one might expect,” this year, Bravin argued. The court reached unanimous decisions on public decency laws, employment discrimination and the power of the Environmental Protection Agency.

However, anonymous leaks about the justices’ deliberations about the health-care ruling showed “the Supreme Court acting more like a political entity than we have in a long time,” he added.

“Any belief that the court could stay above the legal fray was misguided,” Pushaw said.

Voicing the most conservative opinion on the panel, he said Roberts’s court was playing “small ball” in its decisions and depending on semantics to avoid tough stances.

Roberts’s argument that the health-care mandate equated to a tax was flimsy, Pushaw said.

He separated himself from the rest of the panel by suggesting a more one-sided Supreme Court, with something like seven radical conservatives or seven radical liberals, would benefit the country. He said at least the country would know where the court stood on constitutional issues as it forged its legal path.

Coyle said the public saw an unbridled political bent in Justice Antonin Scalia’s opinions.

“He was, you could say, Scalia unbound,” she said, evoking laughter from the hundreds of students and lawyers in attendance.

Chemerinsky disagreed that politics were involved in Roberts’s decisions. The constitutional expert said it was “insulting” if there was no evidence to prove such a claim. Roberts voted with the majority 92% of the time, Chemerinsky added.

He said the court has interpreted laws with 5-4 rulings for generations. The court’s legitimacy hasn’t been in danger under Roberts’ leadership, he said after the discussion.

The panel agreed that portions of Arizona’s immigration law would be challenged in the lower courts, where issues such as racial profiling by police officers will have to be settled.

Chemerinsky led the panel in agreement that the court will likely throw out the federal Defense of Marriage Act in its next term, with Justice Anthony Kennedy, but maybe Roberts, acting as the swing vote.

Twitter: @JosephSerna