In Watters v. Wachovia last year, for instance, Ruth Bader Ginsburg, a former ACLU lawyer, wrote the opinion for a majority that also included liberal Steven Breyer in a case that declared that states have no right to regulate the operating subsidiaries of national banks. On its face, this might sound like no big deal, until you recognize that some of those operating subsidiaries were engaged in subprime and other shady mortgage lending that's now wreaking havoc on the economy. The states had attempted to step in to combat some of the fraud at work long before the feds even noticed there was a problem.
But the court's liberals deferred to the federal banking regulators in the Office of the Comptroller of the Currency. The decision was a huge victory for the banks, leaving their subsidiaries largely immune to regulation or lawsuits based on state consumer protection laws.
Ginsburg and Breyer also came down with the majority in a decision that upheld the use of mandatory-arbitration clauses in contracts for services that are themselves against the law. In Buckeye Check Cashing v. Cardegna, the court said a consumer could be forced to arbitrate a dispute with a payday lender rather than go to court even though payday lending is illegal in Florida, where the case originated.
During the oral arguments, Breyer expressed concern that if the court ruled for the consumer, businesses might suffer because so many of them now use mandatory arbitration to keep people out of court. He seemed to believe that letting people go to court would somehow lead to economic ruin, even when they were suing companies that had defrauded them. "I wouldn't want to reach a decision…that would make a significant negative difference in the gross national product of the United States," Breyer said. The case greatly expanded the number of people who can no longer bring their consumer disputes before a judge or jury.
Despite a few of these sorts of decisions, it is still the conservatives on the court who seem to be most out of touch with the people who will be affected by their rulings. The oral arguments during the Indiana voter ID case serve as a case in point. There was Chief Justice John Roberts Jr., with his movie-star good looks, and a smile and smoothness that seemed so reasonable and reassuring during his confirmation hearings. And yet, during the oral arguments, Roberts couldn't have been more dismissive of the plight of poor and minority voters at the heart of the case. Like the other conservatives, Roberts, who earned $1 million a year in private practice, couldn't seem to fathom that there are people in this country who don't have a photo ID. When informed that a voter who didn't have ID would have to travel to a county clerk's office to provide addition documentation for her vote to be counted, Roberts quipped that in his home state of Indiana, county clerk's offices weren't too far apart.
The plaintiffs' lawyer, Paul Smith, countered that for a poor person living in Gary, Indiana, the county clerk's office was quite a schlep, 17 miles. ("Seventeen miles is 17 miles for the rich and the poor," Antonin Scalia chimed in.) Smith gently reminded the justices that the people he was talking about didn't have driver's licenses. That's why they couldn't vote at their local polling places. For them, getting to the clerk's office would require using public transportation, which, anyone who's ever spent much time on public transit would surely know, gets less and less frequent and reliable the farther you have to travel.
What was striking about the exchange between Smith and Roberts, though, wasn't just Roberts' unfamiliarity with riding the bus, but his lack of any apparent understanding of the lives of people on the lower end of the economic spectrum. In this regard, Roberts is not alone on the court. It's clear that many of the justices would rather not see these sorts of folks appearing on their docket at all. Simon Lazarus, public policy counsel at the National Senior Citizens Law Center, calls it the "arrogant abstractness" that predominates the court today.
The court's overt hostility to average- or low-income people is in itself keeping people out of court. One possible reason the Supreme Court docket is so crowded with business cases is that liberal public interest lawyers are avoiding it, says John Bouman, the president of the Sargent Shriver National Center on Poverty Law. "There's very little empathy on the court," he says, and as a result "people are showing restraint as to whether to take things up at all."
The change in the docket may only reinforce the court's ivory-tower qualities. The fewer everyday people who make their cases in court, the fewer opportunities the justices will have to let their perceptions evolve. One of the selling points of lifetime tenure for Supreme Court justices is that it can free them from politics and allow them to focus on the law and the facts of the cases before them. It is supposed to allow for evolution, which has been known to happen. Justice John Paul Stevens, now the last remaining reliable liberal on the court, is himself a Republican appointee, nominated by Gerald Ford. His views on such hot-button issues as affirmative action and obscenity have changed during his many years on the court. Even former Chief Justice Rehnquist, who as a law clerk once wrote that he thought Plessy v. Ferguson, the case upholding racial segregation, ought to be reaffirmed, eventually came to champion Brown v. Board of Education.
But you do have to wonder about the current crop of young conservatives like Roberts. Insulated from the real world through an adult life of privilege, insulated from actual people by years of conservative legal rulings, it's hard to see where the opportunities for growth will come from. As Arthur Bryant, the executive director of Public Justice, a public-interest law firm, says, "Our system of justice cannot do justice if people cannot get into court."