Sitting in the courtroom the last two days, I was reminded of how profoundly the Court is split 5-4, conservatives-liberals, on cases that really matter. The divide was evident during oral arguments in the Arizona campaign finance dispute Monday and in the gigantic Wal-Mart job-discrimination class action fight Tuesday. And one of most compelling moments along these lines came Tuesday morning when Justice Ruth Bader Ginsburg read aloud her dissenting opinion from a decision in which the five-justice conservative majority ruled that a former Louisiana Death Row could not sue prosecutors who had failed to turn over blood evidence that could have shown his innocence.
Justices rarely read dissents from the mahogany bench, and when it happens, it’s usually in June, the final, tense month of the term.
But Ginsburg, the most senior liberal, could not hold back from a very public protest of the majority decision in Connick v. Thompson, written by Justice Clarence Thomas and overturning the $14 million verdict John Thompson won in a civil rights trial after he was freed from prison.
With her outrage barely betrayed by a steady, flat voice, Ginsburg emphasized the injustice Thompson faced and responsibility former District Attorney Harry F. Connick bore. She noted that prosecutors have a constitutional obligation to reveal evidence that might exonerate a person: “That obligation was dishonored in this case. Consequently, John Thompson spent 14 years isolated on death row before the truth came to light.”
Liberals were on the defensive in the two major cases argued this week, too. The five justices who have voted against campaign finance regulations in recent years, including Chief Justice John Roberts and key swing-vote Justice Anthony Kennedy, looked ready to strike down a newly disputed Arizona public-financing law that gives extra matching funds to candidates who run against well-off opponents. That case is the first campaign controversy to be taken up since the Court’s January 2010 decision in Citizens United v. Federal Election Commission, lifting federal limits on corporation and labor union spending in elections.
On Tuesday, in the high-stakes Wal-Mart Stores v. Dukes case, conservatives appeared inclined to block a decades-old lawsuit on behalf of Wal-Mart female employees nationwide. (See story.) The women contend their pay and promotions trailed those of men in comparable jobs across the nation. Wal-Mart disputes that assertion and argues the class action should be thrown out because the women lack sufficient common grounds to connect workers in thousands of stores, with hundreds of managers, in a single claim.
It was just two days of the term, but they may stand for the whole.