Simon Lazarus

Simon Lazarus is senior counsel to the Constitutional Accountability Center, a public-interest law firm, think tank, and action center committed to fulfilling the progressive promise of America’s Constitution.

Recent Articles

Repealing the 20th Century

When most Americans think about the Supreme Court's effect, they think about such cultural hot-buttons as abortion, or due process for terrorists.

Illustration by Jason Schneider
When most Americans think about the Supreme Court's effect on the life of their nation, they think about such cultural hot-buttons as abortion, or due process for terrorists, or free speech and pornography. They don't think about the Court's effect on the issues that most directly affect the majority of them on a daily basis -- health and retirement security, workplace fairness and equal opportunity, consumer protection and product safety. Since these pocketbook matters do not roil culture-war sensitivities or raise constitutional questions, the press, public, and politicians pay little or no heed when they come before the Court. Nor, with few exceptions, do liberal advocacy groups -- even though landmark laws they fought to enact are at risk, and even though constituencies they purport to represent have much reason to care about how those laws will fare in the hands of the Roberts Court. Indeed, while right-wing groups still make political hay by railing at "liberal activist" judges...

The Most Activist Court

How should progressives think about and respond to the assaults of the Roberts Court? Here are three quick and simple suggestions.

Two citizens hold signs during a news conference in Louisville, KY, following the decision yesterday. (Photo by the Associated Press.)
Digging out from an unprecedented avalanche of 5-4 end-of-term Supreme Court decisions overruling its own precedents, federal statutes, state laws, and local ordinances, many Americans have now caught sight of a specter once imagined only by a tiny cadre of legal cognoscenti: A Supreme Court bound and determined to reprise the Court's reactionary role from a century ago, out to squelch progressive policies whatever their source. Transparently, and contrary to his earnest pre-confirmation professions of fealty to judicial "modesty," Chief Justice John Roberts embraces this activist enterprise. He evidently sees himself in a leadership contest -- not leadership of the Court nor, much less, the nation, but of the elite of very smart and equally ideological lawyer-conservatives which remains his political home and constituency. His much-publicized recent spats with Justice Antonin Scalia -- over whether to overrule landmark precedents, or to retain them in principle but marginalize them...

Courting Big Business

This week's ruling is yet another in a series of disastrous right-wing decisions by the Roberts Court.

On Tuesday, a 5-4 Supreme Court majority gutted one of the most fundamental workplace safeguards established by Title VII of the 1964 Civil Rights Act -- its guarantee that employees' paychecks not be reduced on grounds of race, gender, religion, age, or ethnicity. The Court's decision so disturbed Justice Ruth Bader Ginsburg, a lifetime gender discrimination foe, that she made the rare gesture of reading aloud her 20-page dissenting opinion from the bench. Justice Samuel Alito's majority opinion confirms other signals from the Court's first two terms under Chief Justice John Roberts: a four-justice bloc -- Alito, Roberts, Antonin Scalia and Clarence Thomas -- appears dead set on overriding, undermining, or otherwise neutralizing major laws enacted by liberal Congresses (and taken for granted by the public) over the last two-thirds of the 20th century. In this case, Ledbetter v. Goodyear Tire & Rubber Company , the foursome, augmented by swing Justice Anthony Kennedy, shredded the...

More Polarizing Than Rehnquist

John Roberts won Senate confirmation by vowing to shun ideological activism. Instead, he's trashed judicial precedent.

No one can yet foresee where 52-year-old Chief Justice John Roberts will take the Supreme Court during the several decades he will likely preside over it. But one thing is already clear: Roberts himself wants the public to understand that he is intent on steering away from the ideological, polarized warfare of the Rehnquist era and toward a new era of "consensus." On this point, he is not content to let his votes or the Court's decisions speak for themselves. Before his freshman term was complete, in the spring of 2006, the new chief justice launched an unprecedented public-relations offensive, proclaiming his quest for harmony through a series of interviews with Supreme Court pundits Benjamin Wittes, Jeffrey Rosen, and Jan Crawford Greenburg (most notably during a lengthy TV appearance with Rosen on a February 2007 PBS special). And yet, the Roberts Court's actual performance draws quite a different picture from its chief's off-the-court presentations. In the...

Gunning For Congress

Predictably, proponents of Judge Samuel Alito's Supreme Court nomination have mobilized to scrub a particularly troublesome spot on his record -- a 1996 dissenting opinion in a case called United States v. Rybar , in which he voted to invalidate a federal law banning machine guns. Alito insisted that applying the statute to mere intrastate possession of machine guns exceeded Congress' power to regulate interstate commerce. A year ago, constitutional pundit Jeffrey Rosen, a centrist who supported John Roberts' confirmation, said that Alito's argument in this case belied a "lack of deference to Congress that is unsettling." A week after Alito's nomination, staunch Oklahoma conservative Senator Tom Coburn agreed, acknowledging on Meet the Press that Alito's decision constituted "legislating" on turf that should be reserved for Congress, not judges. But within days of Judge Alito's nomination, former Reagan Solicitor General Charles Fried was admonishing a New York Times interviewer not...