Dahlia Lithwick asks “[w]hy hasn’t the war against terrorism produced any great First Amendment cases?” As she notes, the absence of any major recent wartime free speech cases does not stem from the justices’ lack of interest in the First Amendment:

There seems to be no one answer to why there hasn’t been a single important First Amendment protest case in the last decade. It’s certainly not that the court is reluctant to rule on First Amendment issues altogether. The Supreme Court has taken up a surprising number of speech cases recently. But right now the court is more interested in crush videos, gay marriage bans, anti-Hillary Clinton movies, violent video games, corporate speech, and funeral protests than in the rights of people to criticize government wars. What does this say about the war on terror? And what does it say about what Americans care about most?

It’s not clear, however, that the Court’s docket says much at all about what the nation as a whole cares about.  Indeed, if anything, the Court’s First Amendment docket is a symptom of a strange self-image newly embraced by legal conservatives.

As Dahlia notes, wartime often produces the Court’s “very worst” free speech cases.  America is only a few generations removed from the time when anti-war protestors were jailed with the Supreme Court’s blessing.  Modern First Amendment doctrine, by contrast, recognizes that dissenting voices must be accorded the highest degree of legal protection — after all people who disagree with the government are ultimately the only people who need the First Amendment.

As the nation evolved from one that criminalizes dissent to one that shields it, something odd happened to conservatives.  Consider a statement by tenther law professor Randy Barnett explaining why he values the Federalist Society:  “It’s kind of a support network for people who are sort of dissidents within their own academic environment — and I was one, before there was a Federalist Society, so I know how lonely it can be to be alone . . . .”

In the most superficial sense, Barnett is right.  People who think that the minimum wage or anti-pollution laws are unconstitutional are very uncommon in the legal academy.  They’re also a lunatic fringe pretty much everywhere else. On the same day that Democrats got shellacked at the polls, voters largely shunned candidates who vocally embraced Barnett’s radical vision of the Constitution.

But there’s something absolutely nuts about Barnett claiming the mantle of the oppressed minority.  Barnett’s entire scholarly career has been devoted to rendering workers, children — indeed anyone who breathes air — powerless against corporate oppressors.  Barnett is fundamentally on the same side as the early 20th century coal barons who forced children to toil in coal mines for pennies a day.

In some ways, the right’s new solidarity with political dissenters is a good thing — if they think they know what it’s like to be punished for speaking out, maybe conservative judges will also protect those who truly need the First Amendment’s protection.  But America has also paid a step price for the right’s new self-image as the oppressed dissent.

In its loathsome Citizens United decision, the Court struck down limits on corporate takeovers of elections by warning that such limits “allow[] speech by some but not others” — the “others,” in this case, being massive pools of corporate money.  In Hollingsworth v. Perry, a 5-4 Court forbade broadcasting the recent Prop 8 trial because anti-gay expert witnesses claimed that they would face “harassment” if the world got to see their faces.

But the right’s new self-image comes out most clearly in Christian Legal Society v. Martinez, an entirely banal case which reached the obvious conclusion that the government is not required to subsidize anti-gay student groups.  The only interesting thing about Martinez is the fact that it produced a dissent.  Justice Alito, joined by his three most conservative colleagues, compared the anti-gays to a 60s era new left group that was unconstitutionally kicked off of college campus’ because of its political views.

In other words, the answer to Dahlia’s question may be that a majority of the Supreme Court is no longer interested in helping the government suppress speech — they’re too busy finding new ways to amplify voices they agree with.

Earlier this week, seven Republican-appointed federal judges co-signed a letter warning of the consequences of the GOP’s systematic obstruction of President Obama’s judges. The letter from the Judicial Council of the Ninth Circuit, which includes Republican appointees Alex Kozinski, Ralph Beistline, Vaughn Walker, Irma Gonzales, Frances Marie Tydingco-Gatewood, Richard Frank Cebull, Lonny Ray Suko, explains that:

In order to do our work, and serve the public as Congress expects us to serve it, we need the resources to carry out our mission. While there are many areas of serious need, we write today to emphasize our desperate need for judges. Our need in that regard has been amply documented (See attached March 2009 Judicial Conference Recommendations for Additional Judgeships). Courts cannot do their work if authorized judicial positions remain vacant.

While we could certainly use more judges, and hope that Congress will soon approve the additional judgeships requested by the Judicial Conference, we would be greatly assisted if our judicial vacancies–some of which have been open for several years and declared “judicial emergencies”–were to be filled promptly. We respectfully request that the Senate act on judicial nominees without delay.

Although the letter is written in the respectful tone that judges generally adopt when speaking to their colleagues, this kind of advocacy by judges is exceptionally rare. Indeed, judges so rarely speak out about the judicial confirmation process that when conservative Chief Justice William Rehnquist spoke out against GOP obstructionism of President Clinton’s nominees in 1997, the event stunned senators into action. Judicial confirmations increased from only 36 in 1997 to 65 in 1998. GOP obstructionism has now gotten so serious that only 41 judges have been confirmed during Obama’s entire presidency.

An op-ed co-authored by retired GOP Judge Timothy Lewis provides a grim accessment of what will happen if Republicans continue their “delay for delay’s sake” tactics: “They are creating an unprecedented shortfall of judicial confirmations and, ultimately, a shortage of judges available to hear cases. For many Americans, this means justice is likely to be unnecessarily delayed — and often denied.”

Cross-posted on ThinkProgress.

Our guest blogger is Lisa Gilbert, Deputy Director of Congress Watch at Public Citizen.

This week, as both parties hold their leadership elections for the House of Representatives, is a good time to look forward towards what the House will look like under the leadership of incoming Speaker John Boehner (R-OH). When it comes to ethics, we urge the incoming leadership to avoid following in the footsteps of the most recent Republican Congress.

In the Republican-controlled 109th Congress, there was an unprecedented level of corruption, with lobbyists exerting influence through wining and dining, travel junkets and fundraising; lawmakers engaged in a record amount of “earmark for campaign contribution” trade-offs. In addition, former Rep. Tom DeLay’s (R-TX) K-Street project made it clear to the public that lobbyists had a favored role in the halls of Congress.

Flipping back through the scrapbook of this period’s abuses, the snapshots invoke predictable disgust:

– In 2003, disgraced former lobbyist Jack Abramoff gave away an estimated $180,000 in food and wine to members of Congress and staff. While at the nearby Capital Grille, it was standard to see congressional staffers giving their lunch checks to the nearest available lobbyist, who eagerly paid.

– In 2005, lawmakers took 1,340 trips at a cost of $3.6 million, usually billed to businesses and K Street firms with legislation pending before Congress and frequently aboard corporate jets carrying or filled with lobbyists.

– Both the number and dollar amount of earmarks reached an all-time high in this era, with 13,997 earmarks worth $27.3 billion in 2005 and 9,963 earmarks worth $29 billion in 2006, according to the watchdog group Citizens Against Government Waste.

– With the “K Street Project” in full swing, lobbying firms were pressured by Republican leaders to hire prominent Republican Party operatives and staffers in return for special access.

Though the K Street Project came to an official end with passage of HOLGA, Boehner is again working very closely with K Street. He has put together a list of about 75 to 80 potential chiefs of staff for newly arriving Republican members of Congress, including current and former Capitol Hill staffers and lobbyists who have been recommended or have inquired about working for an incoming Republican member. Read more

One of the most bizarre developments since President Obama took office is the growing desire on the right to repeal the Seventeenth Amendment, the provision of the Constitution which requires senators to be chosen by election.  Senator-elect Mike Lee (R-UT), Gov. Rick Perry (R-TX) and Supreme Court Justice Antonin Scalia have all jumped on this bandwagon.

Over at the National Review, right-wing law professor Todd Zywicki makes the unsurprisingly unpersuasive case for this radical proposal.  Among other things, Zywicki claims that repealing the Seventeenth Amendment would be a good thing because it would make senators more like British Lords (yes this is true), but the crux of his argument is that we should leave senator selection in the hands of state legislatures to fill the Senate with individuals who “recognize that their reelection depend[s] on pleasing state legislators who prefer[] that power be kept close to home.”

Conservatives have long advocated devolving power from national leaders to state governments as a backdoor way to undermine America’s social safety net.  Landmark programs such as Social Security and Medicare are economically impossible unless they are administered by the federal government or coupled with draconian restrictions, such as a mandate that everyone must retire in the same state that they worked and paid taxes in. Ultimately, shifting power from national to state leaders can be an effective way to dismantle these landmark programs. 

But this does little to answer why the right has suddenly become obsessed with Senate elections, as it’s not even clear that repealing the Seventeenth Amendment would succeed in significantly altering the balance of power between state and national leaders. As David Gans explains, the Seventeenth Amendment did not come about through some kind of federal assault on state power (nor could such an assault have succeeded because it is impossible to amend the Constitution without the consent of a supermajority of state legislatures). Rather, the last time state lawmakers were empowered to choose senators, they practically begged the Congress to take that power away from them:

By 1912 –- when the Senate finally capitulated to public pressure and approved the Seventeenth Amendment –- thirty-three states had provided for direct primaries; another twelve states had implemented the “Oregon system” in which candidates for state legislative office pledged whether or not they would adhere to the results of the popular vote for Senator.  Between 1874 and 1912, Congress received 175 petitions from state legislatures calling for direct election of Senators.  Most important, when year after year, the Senate refused to approve the proposed Seventeenth Amendment, states around the country petitioned Congress for a constitutional convention. By 1910, 27 states had called for a convention, and only the threat of an actual convention finally spurred the Senate into action.

So there’s little reason to believe that actual state lawmakers want to drink the states-rights cocktail that Zywicki is brewing. As Gans explains, however, there is one very simple reason why conservatives may prefer the pre-Seventeenth Amendment America — repealing the Seventeen Amendment would be like Citizens United on steroids:

[T}he system led to rampant and blatant corruption, letting corporations and other moneyed interests effectively buy U.S. Senators, and tied state legislatures up in numerous, lengthy deadlocks over whom to send to Washington, leaving those bodies with far less time to devote to the job of enacting the laws their states needed for the welfare of the people.

So while it’s anyone’s guess why so many far-right lawmakers and constitutional scholars have suddenly taken aim at the United States Constitution, the simplest explanation is probably the best one. Eliminating Senate elections would increase corporate America’s power to choose lawmakers and potentially undercut the social safety net in the process. In other words, it will help to reshape America in the right wing’s image.

A tragic pattern in the Supreme Court’s docket is the frequency of cases where corporate interest groups press new and increasingly more creative ways to kick ordinary Americans out of court.  Their most recent push towards total lawsuit immunity is a case called AT&T v. Concepcion, which the justices will hear today.  If corporate America wins Concepcion, they could win the power to cheat millions of Americans out of a few dollars every day:

In AT&T Mobility v. Concepcion the Court will decide whether corporations can also force consumers to sign away their right to bring a class-action lawsuit before the arbitrator in addition to forcing consumers into a privatized justice system.

Class-action lawsuits are especially important in cases like Concepcion, where the amount of money at stake is very small—in this case only about $30. If a company cheats one person out of $30,000 that person is likely to sue and the company is likely to be held accountable for its actions. If the company cheats 1,000 people out of $30, however, most of these individuals will decide that the small loss is not worth a lawsuit—and the company will get off nearly scot free.

Class-action lawsuits enable many people with small dollar losses to join together in a single suit, and they make sure that corporate America cannot continuously break the law a few dollars at a time.

Stephanie Mencimer labels Concepcion “Consumer Protection’s Citizens United,” but this label probably does not go far enough.  Citizens United was an earthquake because it broke the backbone of campaign finance regulation overnight — tossing out an unbroken 63 year-old consensus in the process.

Concepcion is part of something much more subtle, but no less insidious.  In the 1980s, the justices started to rewrite a 60-year old law enacted to allow sophisticated merchants to arbitrate their disputes in fair and neutral forums — creating an abusive practice known as “forced arbitration.”  Before many banks, cell phone companies, employers, or even nursing homes will do business with a consumer, worker, or patient they force that individual to sign away their right to sue the company in a real court, requiring that any disputes be brought in a secretive, privatized arbitration system that overwhelming favors corporate parties.  Moreover, as Stephanie explains, the Court has made it nearly impossible to escape forced arbitration:

The court has issued a string of recent rulings upholding the right of corporations to do an array of things under the guise of arbitration clauses. Most recently, in Rent-a-Center West v. Jackson, the court ruled that companies can even write arbitration clauses that force employees who think the provision is illegal to ask an arbitrator, not a judge, to make that determination. In effect, an aggrieved employee could be in the absurd situation of having to ask an arbitrator whether hiring the arbitrator is unfair.

And forced arbitration is just one of the many tools the Court has given corporations to help them escape accountability for their actions.  In a case called Ashcroft v. Iqbal, the Court gave right-wing trial judges very broad discretion to toss out cases they deem “implausible.”  In a series of cases dealing with medical devices and employer benefits, the justice gave device manufacturers and employer-provide health insurers almost complete immunity from the law.  Just months after Congress smacked down the Court’s egregiously anti-worker decision in Ledbetter v. Goodyear Tire, the justices responded by creating a totally new way to kick older workers out of court.

Make no mistake, if Concepcion turns out badly it will be a disaster for millions of American consumers and a greenlight for corporate America to scam us all a few dollars at a time.  But such a decision would not be anything new — it would just be the latest episode in the Roberts Court’s crusade for corporate immunity.

Fifth Circuit Judge Priscilla Owen and former President George W. Bush

The United States Court of Appeals for the Fifth Circuit, one of the most right-wing courts in the country, sanctioned a former high school cheerleader because she brought a lawsuit claiming that she shouldn’t be required to cheer for her alleged rapist: