Eight years ago, in an opinion warning of the “violent consequences of the assumption of religious authority by government,” retired Justice Sandra Day O’Connor offered a challenge to her fellow conservative justices eager to weaken the wall of separation between church and state: “[t]hose who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?”

Today, there are five justices on the Supreme Court who would trade a system that has served us so well for one that has served others so poorly. And they just announced that they will hear a case that gives them the opportunity to make this swap a reality.

O’Connor was the Court’s leading supporter of the view that government cannot endorse a particularly religious belief or take action that might convey such a “message of endorsement to the reasonable observer,” and this view put her at odds with the four other members of the Rehnquist Court’s conservative bloc. When she left the Court, she was replaced by staunchly conservative Justice Samuel Alito, and most Court observers expected decades of precedent protecting against government endorsements of religion to fall in very short order.

Instead, the Roberts Court’s majority has thus far been content to chip away at the wall between church and state a piece at a time. In Hein v. Freedom From Religion Foundation, the Court immunized many Executive Branch actions from suits claiming they violate the Constitution’s ban on “law[s] respecting an establishment of religion.” And in Arizona Christian School v. Winn, they empowered government to subsidize religion so long as those subsidies are structured as tax benefits and not as direct spending. But the core question of whether the government can “demonstrate . . . allegiance to a particular sect or creed” likely still must be answered in the negative.

The case the Court agreed to hear today, Town of Greece v. Galloway, is likely to change that. The ostensible issue before the Court is whether a municipal legislature violated the Constitution’s ban on separation of church and state when it began its meetings with overtly Christian prayers roughly two-thirds of the time. Yet the case also explicitly tees up the question of whether a government “endorsement” of religion of the kind rejected by O’Connor is permitted under the Constitution. If you’re placing bets, the odds are overwhelming that five conservative justices will say that such an endorsement is permitted.

With O’Connor gone, the much more conservative Justice Anthony Kennedy becomes the swing vote on questions of church/state separation. Kennedy has held that “government may not coerce anyone to support or participate in religion or its exercise,” but it is not clear that he would forbid much else under the Constitution’s ban on government establishment of religion. By the end of the next Supreme Court term, however, it is very likely that his views will carry the day.

Soybean Farmer Victor “Hugh” Bowman

The U.S. Supreme Court ruled unanimously in favor of Monsanto Monday, in a major challenge to the biotech giant’s dominant market share over soybeans. Justice Elena Kagan held in a narrow ruling that farmer Victor “Hugh” Bowman violated Monsanto’s patent over its pervasive herbicide-resistant soybeans when it utilized the common practice of saving seeds from a first growing season and replanting them for a second, without paying Monsanto for the use of its technology every year. Monsanto’s “Roundup Ready” seeds are used to grow about 90 percent of the nation’s soybean crop, and food safety experts say the vigorous patent enforcement has led to skyrocketing seed prices and less innovation by smaller firms.

The ruling is the latest by the particularly business-friendly Roberts Court to side with a major corporation over an individual or small business. (Another decision issued today sided with an individual suing a local towing company.) Unlike many of the court’s recent corporate-friendly rulings, however, this case was decided narrowly and unanimously, with Justice Kagan noting, “Our holding today is limited — addressing the situation before us, rather than every one involving a self-replicating product. We recognize that such inventions are becoming ever more prevalent, complex, and diverse.”

In one of the blockbuster cases of this term, the U.S. Supreme Court seems poised to strike down the mechanism for ensuring diversity at colleges and universities, reasoning that the need for affirmative action has run its course. But if the high court itself is any indication, racial diversity hasn’t changed much at all. Over the course of the court’s 2012-2013 term, just one black lawyer argued before the court. The Associated Press reports:

In roughly 75 hours of arguments at the Supreme Court since October, only one African-American lawyer appeared before the justices, and for just over 11 minutes.

The numbers were marginally better for Hispanic lawyers. Four of them argued for a total of 1 hour, 45 minutes.

Women were better represented, accounting for just over 17 percent of the arguments before the justices.

In an era when three women, a Hispanic and an African-American sit on the court and white men constitute a bare majority of the nine justices, the court is more diverse than the lawyers who argue before it.

The arguments that took place from October to April were presented overwhelmingly by white men. Women and minority lawyers whose clients’ cases were heard by the court were far more likely to represent governments or be part of public-interest law firms than in private practice, where paychecks are much larger.

As the article points out, women and minorities have made very limited headway in climbing the ranks at large private law firms, where recent surveys show that 93 percent of partners remain white, and nearly 80 percent are men. But when it comes to Supreme Court litigators, many of these lawyers come from government jobs at the Department of Justice, whose Supreme Court litigation divisions are also largely dominated by white men. Diversity is also even lower than it has been because the high court is accepting less social justice cases in which minority lawyers are well represented. The one African American who did argue before the high court was Debo Adegbile, a former NAACP Legal Defense lawyer who disputed the challenge to the Voting Rights Act.

Limited diversity at the highest levels of the legal profession is a persistent problem that extends outside the courtroom. But inside the courtroom, diversity plays a separate and important role in representing the experiences of Americans, most of whom will never set foot inside the high court, and thus will never see an argument so long as cameras are prohibited in the courtroom. Like the contributions of diverse justices, who have weighed in on social justice cases with important perspectives on discrimination, a diverse lawyer’s contributions are just as substantive as they are symbolic. As Justice Byron White said in a tribute to the late Thurgood Marshall, he “would tell us things that we knew and would rather forget; and he told us much that we did not know due to limits in our experience.”

In 1925, Congress enacted what they thought was a modest law enabling sophisticated businesses to agree to resolve their disputes through private arbitration. Decades later, the Supreme Court transformed it into something completely different — enabling corporations to force workers and consumers into signing away their right to appear in a real court, and shunting them into a privatized arbitration system where the arbitrator is often closely aligned with the corporation. In one case, a private arbitrator even ordered a woman to pay more than $11,000 that she did not owe because she has the same name as another woman who did owe money.

There are supposed to be safeguards against the most abusive forms of forced arbitration. Federal law provides that forced arbitration cannot be used against “workers engaged in foreign or interstate commerce,” for example. But, in Circuit City v. Adams, five conservative justices held that forced arbitration can be used against workers engaged in foreign or interstate commerce. Federal arbitration law does not even mention class actions — which are often the only way that plaintiffs with relatively small claims can vindicate their rights — yet the conservative justices used it to effectively immunize corporations from class action lawsuits. Under this Supreme Court, the 1925 Federal Arbitration Act has been transformed into a magic wand corporations can wave in order to make lawsuits against them go away.

Earlier this week, Rep. Hank Johnson (D-GA) and Sen. Al Franken (D-MN) introduced a bill to fix this. Under the Arbitration Fairness Act, “no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment dispute, consumer dispute, antitrust dispute, or civil rights dispute.” So your boss cannot illegally fire you and then force you into a corporate-owned court. Your cell phone company cannot overcharge you and then escape meaningful accountability. And your mother’s nursing home will no longer be able to abuse its charges and then shunt any lawsuits into a biased arbitration panel.

At least, that is, if this bill is signed into law. Until then, the Supreme Court’s decisions expanding federal arbitration law into areas expressly forbidden by the law’s text will remain in effect.

In recent years, several reports and studies have observed the evident skew in favor of business of the U.S. Supreme Court led by Chief Justice John G. Roberts. Thus far, this term has proved to be no exception, with a 6-1 win rate by the U.S. Chamber of Commerce. And last month, three professors who are prominent in the conservative law and economics movement published what may be the most rigorous study yet on business success before the high court. After analyzing the some 2,000 decisions between 1946 and 2011 under various rubrics for what constitutes a business win before the court, the study confirmed previous conclusions that the Roberts court is significantly more pro-business than its predecessors. What’s more, they found that the most pro-business justices of all since 1946 are George W. Bush’s two appointees to the court: Justice Roberts and Justice Samuel Alito:

As illustrated above, the study also found that five of the top ten justices most favorable to business are currently serving — and they make up the court’s conservative block. It is unsurprising, then, that this court is not only siding with business more, but that it is granting more cases in which lower courts decided against business and overturning those decisions in favor of business interests. The professors explain:

Whether measured by decisions or Justices’ votes, a plunge in warmth toward business during the 1960s (the heyday of the Warren Court) was quickly reversed; and the Roberts Court is much friendlier to business than either the Burger or Rehnquist Courts, which preceded it, were. The Court is taking more cases in which the business litigant lost in the lower court and reversing more of these—giving rise to the paradox that a decision in which certiorari is granted when the lower court decision was anti-business is more likely to be reversed than one in which the lower court decision was pro-business. The Roberts Court also has affirmed more cases in which business is the respondent than its predecessor Courts did.

As a New York Times report on the study notes, prominent among these pro-business decisions are landmark rulings that include the Citizens United decision, a string of decisions eroding the mechanisms for holding corporations accountable as a class, and this term’s Kiobel v. Royal Dutch Petroleum, which shredded accountability for human rights abuses abroad, including those by corporations with some U.S. presence.

Continuing a dramatic winning streak that has spanned the Roberts Court era, the Chamber of Commerce has won six of its seven Supreme Court cases decided thus far this term. In all, it filed amicus briefs in 18 cases this term, making the top corporate lobby a preeminent Supreme Court influencer. The Chamber also files numerous petitions at at the earlier stage when the Supreme Court is deciding which decisions to hear, shaping its docket such that the Chamber is poised to have participated in 24 percent of the Court’s decided cases this term, according to a new report from the Constitutional Accountability Center:

Over the past thirty years, the Chamber’s participation rate has increased six-fold, from 4% in the early 1980s to 24% today.

This dramatic increase in participation is a reflection, in part, of the Chamber’s success in shaping the Court’s docket. As SCOTUSblog reported in early April, the Chamber remains “the country’s preeminent petition-pusher,” as it filed the greatest number of amicus briefs at the cert. stage of any private organization during SCOTUSblog’s three-year study period (running from May 2009 to August 2012). Importantly, the Chamber also has the highest success rate of any of the ten most active organizations during this period – with the Court granting 32% of the Chamber’s cases overall. Therefore, the Chamber is not just participating in cases that the Court decides to hear, but it’s also aggressively and successfully working to shape the Court’s docket.

The Chamber’s win rate has also increased dramatically in the Roberts Court, illustrated in the chart below:

Among the Chamber’s wins thus far this term were two 5-4 decisions that eroded the class mechanisms for holding corporations accountable, and the major ruling on the Alien Tort Statute that slashed accountability in U.S. courts for human rights abuses abroad.

Jonathan Boyer spent seven years in a Louisiana jail before he even saw a trial in the case against him. A Louisiana court found that the bulk of this delay was caused by the state’s failure to pay for the lawyer to which Boyer was constitutionally entitled, but it nonetheless concluded that the delay was not the state’s fault. The U.S. Supreme Court agreed to hear the case on an important question about whether states can be faulted for dodging their constitutional responsibility to provide legal representation to indigent defendants. But today, the court dodged this question and instead dismissed the case altogether as improperly granted.

As Justice Sonia Sotomayor points out in her four-justice dissent, “It is important for States to understand that they have an obligation to protect a defendant’s constitutional right to a speedy trial.” As a consequence of today’s decision, Louisiana will feel no more compelled to live up to its obligation than it did yesterday, in spite of a documented crisis in the Louisiana criminal justice system. Sotomayor, a former prosecutor, explains:

The Court’s failure to resolve this case is especially regrettable, because it does not seem to be an isolated one. Rather, Boyer’s case appears to be illustrative of larger, systemic problems in Louisiana. The Louisiana Supreme Court has suggested on multiple occasions that the State’s failure to provide funding for indigent defense contributes to extended pretrial detentions. There is also empirical evidence supporting that assessment. In New Orleans Parish, for example, a recent study found that more than 22 percent of pending criminal cases were more than one year old. Another study found that the average time between felony arrest and trial in Calcasieu Parish, the jurisdiction where Boyer was tried, was 501 days in the years before Boyer’s arrest. More broadly, the public defender system seems to be significantly understaffed.

Against this backdrop, the Court’s silence in this case is particularly unfortunate. Conditions of this kind cannot persist without endangering constitutional rights.

Louisiana is not the only state in which paltry funding for criminal defendants undermines both the availability and quality of legal representation. A 2012 Brennan Center for Justice study found that public defenders often spend an average of less than six minutes per arraignment in cases where defendants plead guilty, and the sequester has hit already-overburdened public defenders particularly hard. Nor is Louisiana the only state rife with lengthy pretrial detentions of defendants who have not yet been convicted of any crime. A recent New Jersey study found that 75 percent of the state’s jail inmates are those in pretrial detention who have not yet been convicted of a crime, and that they spend an average of 10 months in jail before trial thanks to state backlogs. Even with extended pretrial detention, judges facing ever-greater caseloads and longtime judicial vacancies lament that they are forced to resort to “assembly-line” fashion sentencing, meaning “you  herd everybody into the courtroom and you start sentencing just running down the row.”

In this particular case, Boyer was ultimately convicted of robbing the man who was shot dead after he picked up Boyer while hitchhiking. But not everybody who is held in pretrial detention will ultimately be found guilty, and a decision in this case could have set precedent about the withholding of state funding to lengthen pretrial detention.

While no opinion accompanied the court’s order to dismiss the case as “improvidently granted,” at least three justices who signed onto a concurring opinion apparently dismissed the case because they did not agree with the factual determinations of the Louisiana court. In a concurring opinion, Justice Samuel Alito said the delay was Boyer’s fault, and not the state’s, because he requested several continuances of his trial. Appeals courts typically not disturb the factual findings of a lower court except in the rare circumstances when they were “clearly erroneous.” In this case, even Louisiana had conceded in state court that the lack of funding was the primary cause for delay. On appeal, Louisiana backtracked to again dispute the facts, and Alito, Scalia, and Thomas accepted the state’s argument. This opinion suggests that at least three justices decided to skirt answering an important legal question in order to question an already-decided factual determination.

The U.S. Supreme Court held Tuesday that an immigrant should not have been automatically deported for a minor marijuana conviction. In a 7-2 decision, Justice Sonia Sotomayor said a state charge of possession with intent to distribute for possession of an amount equivalent to two or three marijuana joints was not an “aggravated felony.”

Under U.S. law, immigrants facing deportation typically have an opportunity to contest it. However, if the immigrant has been convicted of crimes categorized as “aggravated felonies” in the Immigration and Nationality Act, deportation is automatic, and not even claims that the individual is seeking asylum can stop that person’s removal from the country. The “aggravated felonies” category includes illicit drug trafficking offenses, but it does not include mere drug possession. Under federal drug law, Jamaican national Adrian Moncrieffe would not have been charged with possession with intent distribute for mere possession of the 1.3 grams found in his car during a traffic stop, with no evidence that money changed hands. But Georgia law defines crimes differently, and immigration agents determined that his guilty plea to the state crime of the same name qualified him for automatic deportation.

Justice Sotomayor rejected immigration agents’ equivocation of Moncrieffe with a commercial drug dealer:

This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as “illicit trafficking in a controlled substance,” and thus an “aggravated felony.” Once again we hold that the Government’s approach defies “the ‘commonsense conception’” of these terms. Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, “does not fit easily into the ‘everyday understanding’” of “trafficking,” which “‘ordinarily . . . means some sort of commercial dealing.’” Nor is it sensible that a state statute that criminalizes conduct that the CSA treats as a misdemeanor should be designated an “aggravated felony.” We hold that it may not be. If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA.

This decision was a case of a state crime misapplied to a federal immigration law. But it also highlights another area of the law in which drug use is harshly over-punished. While Moncrieffe, who has lived in the United States since he was three years old, rightly escaped automatic deportation, those immigrants who are found guilty of a distribution-related crime under the federal Controlled Substances Act will not fare as well.

On Tuesday, another group of plaintiffs suing together lost their case against a corporation. This time, it was workers. Two weeks ago, it was consumers. In both decisions, the same five-justice majority supported their decisions to whittle away corporate accountability mechanisms with procedural rationales that were so results-oriented as to seem nonsensical to the four dissenting justices and other court-watchers.

The latest case, Genesis HealthCare Corp. v. Symczyk, involved health care workers who claimed they were being docked pay for a 30-minute lunch break even when they worked. In what is known as a “collective action” (similar to a class action), one worker files a claim under the Fair Labor Standards Act, and others who are similarly situated later join on to seek a complete resolution to the issue.

So here’s what Genesis did. It offered the first representative plaintiff $7,500 to settle her claim and gave her ten days to respond. Laura Symczyk never responded, presuming the case would continue on. But that’s not what happened. Instead, Genesis successfully argued that Symczyk’s case became moot when she rejected the offer, because the sum of money would have resolved her case in its entirety and she no longer had any claim before the court.

Of course, as Justice Elena Kagan so pointedly makes clear in her dissent, it isn’t true that an unaccepted settlement offer ends a case. “As every first-year law student learns, the recipient’s rejection of an offer ‘leaves the matter as if no offer had ever been made,’” she writes. But somehow, several lower courts accepted the defendants’ argument that the offer mooted Symczyk’s individual case, and plaintiffs conceded the point. And because plaintiffs didn’t appeal on that issue, the majority accepts a conclusion that, as Justice Kagan writes, “the facts will show to be ridiculous” and “ensures it will reach the wrong decision.” In fact, according to Kagan and her fellow dissenters, not only is the majority wrong in this case; there is no way that a settlement offer could ever moot a case. So that’s that. This case would have no applicability to any other case, leading Justice Kagan to advise, ”Feel free to relegate the majority’s decision to the furthest reaches of your mind: The situation it addresses should never again arise.”

But let’s assume for a moment that a situation could arise, since that’s the basis of a new U.S. Supreme Court precedent (and dissents, while useful, are not binding precedent). Assume that, instead of Symczyk rejecting the settlement, she had accepted a settlement at the paltry price of $7,500, intending to resolve her own claim but not the claims of others. Or perhaps more likely, assume that another court, guided by the majority opinion’s silence and not the dissent, disagrees with Justice Kagan and decides that a rejected offer can moot an entire collective case. If courts interpret this to mean that all other workers no longer have a claim, corporations can dispense with every collective action against them simply by buying off just one worker at an astronomically lower price than litigating or settling with all the workers. And it’s possible courts could also apply this to the other mechanism that enables plaintiffs to band together, the class action.

The irony here is that collective and class action mechanisms exist because it costs too much and is too inefficient for any one consumer or worker to challenge a company-wide policy. So individuals can’t challenge a policy alone, but corporations can dispense with their collective lawsuit, by resolving the claim with just one person. Another example of the Roberts Court’s brand of access to justice.

What started out as a case about whether corporations could be held accountable in U.S. courts for human rights abuses against foreigners abroad turned into a case about whether anyone can be held accountable. And on Wednesday, the U.S. Supreme Court held that the answer is, mostly, no.

In a sweeping holding, Chief Justice John Roberts led a splintered court in ruling that several Nigerians alleging an oil company aided an abetted torture, arbitrary killings, and indefinite detention could not sue, because the corporate conduct occurred outside the United States. Roberts reasoned that what is known as the “presumption against extraterritoriality” applies to a 200-year-old statute that authorizes civil lawsuits by “aliens” for “violations of the law of nations,” meaning courts should err against enforcing a law intended to punish egregious foreign conduct in the frequent instances when that conduct takes place in a foreign country.

“[T]here is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms,” Justice Roberts wrote for the majority in Kiobel v. Royal Dutch Petroleum.

Roberts’ conclusion is rebutted by the very conduct the Alien Tort Statute was designed to prevent. Piracy was one of the primary torts targeted by Congress at the time of ATS’ passage – conduct that inherently takes place on the high seas. Justice Stephen Breyer explains in a four-justice concurring opinion that would decide the case on significantly narrower grounds:

As I have indicated, we should treat this Nation’s interest in not becoming a safe harbor for violators of the most fundamental international norms as an important jurisdiction related interest justifying application of the ATS in light of the statute’s basic purposes—in particular that of compensating those who have suffered harm at the hands of, e.g., torturers or other modern pirates. Nothing in the statute or its history suggests that our courts should turn a blind eye to the plight of victims in that “handful of heinous actions.”

Now, that handful of heinous actions will have to find remedy elsewhere. This decision not only means that Nigerians cannot sue foreign corporations for their conduct abroad. On this particular point, the four-justice Breyer concurrence agreed that this case did not pass muster. Roberts’ sweeping pronouncement against extraterritoriality may also mean that foreign nationals subject to abuse, for example, at the hands of a U.S. corporation that houses its factories in places whose laws shield it from liability, or an American citizen who commits human rights violations abroad against foreigners, also could not be subject to suit in the United States.

In two recent federal appeals court decisions, lawsuits that challenged torture abroad by two foreign actors were allowed to proceed in U.S. courts because the defendants had lived or were living in the United States. As Justice Breyer points out, Congress is aware that the ATS is the basis for these sorts of lawsuits, and has not sought to amend the act in any way – likely because they recognize that the act was intended to target foreign conduct that is otherwise difficult to reach. But that did not stop the Roberts majority from inferring the narrowest possible congressional intent.

The scope of the opinion will not become clear until it is interpreted by courts. Extraterritoriality is a legal concept that asks not just whether conduct took place abroad, but also whether the claims “touch and concern the territory of the United States” such that a plaintiff can overcome the presumption against them. The only hint the court gives is that lawsuits against corporations will face a particularly heavy burden, noting, “Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.”

What is clear is that the presumption is exceedingly difficult to overcome, and that both individuals and corporations have a high chance of skirting liability simply by doing their dirty work elsewhere.