Panel discusses Supreme Court’s liberal leanings

IRVINE — A panel of law experts and media met at UC Irvine on Wednesday to discuss how the conservative-leaning U.S. Supreme Court has frequently come down on the liberal side of several major issues.

The panel — consisting of Slate Senior Editor Dahlia Lithwick, the Los Angeles Times’ Supreme Court reporter David Savage, UCI School of Law Dean Erwin Chemerinsky, Chapman University law professor John Eastman and Loyola Law School professor Laurie Levenson — spoke in broad themes about the court’s direction before diving into specific cases.

In broad terms, the panel said, the conservative-dominated court led by Chief Justice John Roberts has pulled to the right with rulings seemingly limiting citizens’ ability to sue law enforcement and local governments over misconduct or taxes.

However, the panel noted that the High Court ruled in favor of the freedom of speech twice. On two major issues the court will likely face next year — healthcare reform and gay marriage — the panel is betting the administration and gay advocates will prevail.

Chemerinsky and Savage both predicted gay marriage will inevitably be upheld by the court, but said they were not sure whether it will be left up to states to decide or the federal government.

“Everybody knows they’ll get there,” Savage said. “The question is how soon.”

The case would probably come down to a 5-4 ruling, Chemerinsky predicted.

“It’s [Justice] Anthony Kennedy’s world and we all just live in it,” Lithwick joked, earning applause and laughter from the 100 or so law students and professors in attendance.

Indeed, on a number of decisions in the court’s most recent term, the moderate Kennedy proved to be the swing vote where the other justices are routinely planted on the left or right of issues, panelists said.

While acknowledging the justices’ political leanings, the panel also warned that the media and public put too much emphasis on keeping a sort of box score of the court’s rulings. They said the court’s rulings are often too complex to sum up as simply pro-big business or anti-states’ rights.

For example, staunchly conservative justices Samuel Alito and Antonin Scalia disagreed in the recent case of Snyder v. Phelps, where Alito was the lone dissenter on the court’s decision to uphold the right of the Phelps family, of the controversial Westboro Baptist Church, to protest at military servicemen’s funerals.

Chemerinsky argued the court has widely closed the legal system to private citizens. Levenson argued the court has taken away rights from criminal suspects.

In one case, AT&T Mobility v. Concepcion, the court dismissed consumers’ rights to file class-action lawsuits against companies if they had a previous agreement that would take complaints to arbitration, not a courtroom.

“We take so seriously the idea that anyone with a claim can have their day in court,” Chemerinsky said. “The Supreme Court doesn’t seem to agree with that.”

Eastman said some of the differences come down to the justices’ views of government. In one opinion, Justice Elena Kagan argued tax breaks are essentially a different form of government spending, Eastman said. In his mind, that reflects Kagan’s view on the role of government and its ability to tax citizens.

University officials said they plan to make the discussion an annual event at the end of each Supreme Court term.