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Narrowly Dodged Bullets: John Roberts’s Dissenting Opinions

Activism at it's best...and you're worried about Elena Kagan?

Chief Justice John Roberts once again presided over a banner Supreme Court term for wealthy corporate interests. In the term ending today, a 5-4 Roberts Court unleashed a flood of corporate money into American democracy in Citizens United v. FEC. And the same five conservative justices strengthened corporate America’s power to force consumers and workers into a secretive, privatized court system that overwhelming favors corporations in Rent-a-Center v. Jackson.

Yet Roberts’s 5-4 giveaways to corporate America only tell half the story. Indeed, Roberts has authored or joined numerous radical dissents that would give powerful corporate interests sweeping immunity from the law. This stands in stark contrast to his confirmation hearing promise to display “humility” and accept his own “modest role” as a justice.

  • Immunity for drug companies: A dangerous drug was injected into the arm of a woman named Diana Levine in 2000, eventually costing her half her right arm and her career as a professional musician. A Vermont jury ordered the drug’s manufacturer to compensate Levine, but Roberts joined a dissent in Wyeth v. Levine that would have held drug companies largely immune from state law. Had this dissent prevailed, states would be powerless to protect women like Levine from drug defects or defective drug labels discovered after the Food and Drug Administration approves a drug for use.
  • Protecting rogue banks: Roberts joined a dissent in a similar case, Cuomo v. Clearinghouse, arguing that federal regulators properly gave the banking industry broad immunity from state law—despite no legal basis for doing so. Had Roberts’s views carried just one more vote, state fair-lending laws and many other consumer banking protections would have effectively ceased to exist.
  • Justice for sale: After A.T. Massey Coal Company—the same company whose negligent safety record led to the death of 29 miners in a recent explosion—lost a $50 million verdict, its CEO paid $3 million to elect a sympathetic justice to a state supreme court. This justice then cast the deciding vote overturning the verdict against Massey—a 1,667 percent return on the CEO’s investment. Roberts’s dissent in Caperton v. Massey said this bought-and-paid-for judge was under no obligation to recuse himself from Massey’s case.
  • Deceptive marketing: Finally, Roberts voted to cut off deceptive advertising claims in Altria v. Good. In his eyes the tobacco industry should have extensive immunity from state laws preventing fraudulent marketing.

Roberts rarely finds himself in dissent since he leads a bloc of conservatives committed to protecting corporate interests. Nevertheless, his few dissenting opinions in corporate immunity cases reveal a willingness to aggrandize corporate power even more so than he already has in cases like Citizens United or Rent-a-Center.

Such zealous advocacy would be entirely appropriate were Roberts still an attorney for corporate interests. He gave up that role, however, when he became a judge. It’s time for him to live up to his promise to be modest and humble in his decision making.

By Ian Millhiser | June 28, 2010-Center For American Progress; Photo-SOURCE: AP/Nick Ut

June 28, 2010 - Posted by | Supreme Court | , , , , , , , , ,

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