June 2013 Archives

The Supreme Court Defends The Indefensible

     During the term just concluded, the Supreme Court handed down a series of decisions that involved issues of government surveillance, consumer rights and employment discrimination, among a number of others that addressed issues of race-based college admissions, the Voting Rights Act, and the proper relationship between the federal government and the states. Many of these decisions have placed in stark relief the largely harmful role that the Supreme Court now plays in the U.S. constitutional system.

     The effects of these decisions, which are unlikely to be quickly redressed, will reverberate far into the future and will further exacerbate the gridlock and paralysis that now define the country's political institutions. Three of their little discussed decisions illustrate the court's continued determination to limit the access of ordinary citizens to the justice system, to protect the powerful entrenched interests who currently control the legal, political and economic institutions of the country, and to curb regulations and laws that could upset the prevailing status-quo.
    In Clapper v. Amnesty International USA, 132 S. Ct. 2431 (2012), the Court's five reactionary jurists - Roberts, Scalia, Thomas, Alito and Kennedy - denied that the petitioner, Amnesty International, had the standing to challenge government surveillance programs and reversed a decision of the Second Circuit Court of Appeals. The winners in that case were the supporters of the garrison/surveillance state; the losers those who believe that government programs should, to the full extent possible,  be open, transparent and accountable.  The court's decision in this case was especially troubling given the data reported on the "Foreign Intelligence Surveillance Act Court Orders 1979-2012" by the Electronic Privacy Information Center which stated that between 1979 and 2012, of the 33,949 warrants requested by the government, only 11 were ever denied by the FISA court.

    The Court, in a decision authored by Justice Alito, sets a virtually insurmountable hurdle for plaintiffs to satisfy the standing requirement. "As an initial matter," Alto held, "The Second Circuit's 'objectively reasonable likelihood standard' is inconsistent with our requirement that 'threatened injury must be certainly impending to constitute injury in fact.'" How this standard short of an adjudicatory hearing - a trial in which evidence of harm could be presented to the triers of fact - a jury - neither Alito, a former federal prosecutor, nor his four result-oriented colleagues, could or would  explain.

    In American  Express v. Italian Colors Restaurant, 570 U. S. ____ (2013) , the issue  before the Court was "whether a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act when the plaintiff 's cost of individually arbitrating a federal statutory claim exceeds the potential recovery." Justice Scalia, on behalf of his one vote majority, courageously ruled in favor of a the credit card company and against the interests of consumers and small businessmen. Scalia upheld that an arbitration agreement that American Express and its subsidiaries forced upon  merchants who accepted American Express cards. The agreement,  which on its terms should have been set aside as an unenforceable adhesion contract, required that all of their disputes to be resolved by arbitration and provided that a provision that there
"shall be no right or authority for any Claims to be arbitrated on a class action basis" must be strictly enforced.

    Justice Kagan's dissent was telling: "Amex's contract will succeed in depriving Italian Colors of any effective opportunity to challenge monopolistic conduct allegedly in violation of the Sherman Act. The FAA, the majority says, so requires. Do not be fooled. Only the Court so requires; the FAA was never meant to produce this outcome. The FAA conceived of arbitration as a "method of resolving disputes"--a way of using tailored and streamlined procedures to facilitate redress of injuries. Rodriguez de Quijas, 490 U. S., at 481 (emphasis added). In the hands of today's majority, arbitration threatens to become more nearly the opposite--a mechanism easily made to block the vindication of meritorious federal claims and insulate wrongdoers from liability."

    Justice Kennedy, the self-appointed swing vote and decider in so many of the Supreme Court's recent decisions, wrote the majority opinion in the University of Texas Southwestern Medical Center v. Nassar, 570 U. S. ____ (2013), on behalf of the divided court. In that case, the five right wing jurists chose to set aside a jury verdict in a Title VII discrimination claim, reversed the holding of very conservative Fifth Circuit Court of Appeals that still affirmed the jury award on Nassar's retaliation claim, ignored Congressional intent in enacting civil rights legislation, and showed no deference whatsoever to the administrative regulations and policies of the United States Equal Employment Opportunity Commission. The one vote majority held that "Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in ยง2000e-2(m). Pp. 5-23.(a) .In defining the proper causation standard for Title VII retaliation claims, it is presumed that Congress incorporated tort law's causation in fact standard--i.e., proof that the defendant's conduct did in fact cause the plaintiff's injury--absent an indication to the contrary in the statute itself."

    Justice Ginsberg's dissent was compelling as she narrated the record that supported the jury's verdict on Dr. Nassar's behalf and surveyed the Congressional intent and the EEOC's regulatory regime concerning retaliation claims. As she noted on behalf of n behalf of the dissenters,  " The Court shows little regard for trial judges who must instruct juries in Title VII cases in which plaintiffs allege both status -based discrimination and retaliation. Nor is the Court concerned about the capacity of jurors to follow instructions conforming to today's decision. Causation is a complicated concept to convey to juries in the best of circumstances. Asking jurors to determine liability based on different standards in a single case is virtually certain to sow confusion."

    The intended results of this 5-4 decision will be to make it infinitely harder for those few plaintiff's employment attorneys who continue to prosecute discrimination claims to prevail before juries, to so discourage such representation, and to further emasculate the few remaining protections available to employees. This decision must also be viewed in the context of recent labor history. Previously, the passage of the Taft-Hartley Act in 1947, over President Truman's veto, and subsequent decisions of Supreme Court narrowing the key provisions of provisions of the National Labor Relations Act and regulations promulgated by the National Labor Relations Board, had already effectively gutted the rights of employees in the private sector to organize and bargain collectively. The effects of those past decisions have been to discourage unionization and to make it impossible for employees, acting collectively, to resist out-sourcing, improve their wages, or to otherwise hold corporations accountable for their continued assault and battery upon the living standards of ordinary Americans.

    These three cases underscore the judicial world view of the five right wing jurists who enjoy life tenure for good behavior under the constitution. Their world view includes their shared commitment to an activist agenda that endorses a pre-Civil War concept of federalism, based upon "states' rights" and a commitment to constraining the power the Congress to enact laws in the  public interest; a determination to hobble ability of the executive branch and its agencies - except in matters of foreign policy and entanglements - to issue regulations and to enforce laws that promote equal rights and common good; to empower the private sector, even if it is detrimental to the interests of ordinary citizens as employees, consumers and merchants; and to limit access to the courts and the justice system by those who would seek to challenge the monopoly of power exercised by the  1%.   

    Given their world view, it is not surprising that in Fisher v. the University of Texas, 570 U.S. ___(2113), these same five jurists voted to impose a standard of strict scrutiny  - a requirement that state actors must show a compelling state interest - to promote racial diversity or that, in the matter of  Shelby County v. Holder, 570 U.S. ___(2013), the five jurists did not hesitate to set aside the Voting Rights Act, supported by thousands of pages of Congressional testimony and additional evidence provided by the Department of Justice, that documented current efforts, particularly throughout the original states of the Confederacy, to limit the franchise by imposing additional obstacles upon voting have a disparate impact upon racial minorities.

    The five jurists justified their striking down the Voting Rights Act because it supposedly treated the states of the former Confederacy more harshly than other states even though, until well into the 1960s, these Southern states continued to restrict the rights of minorities in contrast to the other states. Roberts and his four professedly "strict-constructionist" "original intent colleagues," in a feat of legerdemain, even invented a novel legal fiction that has no basis in American jurisprudence -  a doctrine that the First Justice described as "equal sovereignty.

    Absent from Roberts' pre-Civil War legal exegesis was any understanding -or even a grudging concession - that the Tenth  Amendment reserves powers not delegated to the federal government "to the States respectively, or to the People." The phrase  "The People" refers to a collectivity in whom all sovereignty, in a democratic society, ultimately resides. The recognition of the existence of that residual sovereignty should, as a matter of constitutional interpretation,  supersede the fictional legal sovereignty accorded to the states. As a matter of history, not legal fiction, it is undisputed that the thirty-seven states, beyond the original thirteen colonies, were subsequently admitted to the union expressly subject to the rules and conditions imposed by the Congress. As Judge Posner, whom no one would ever accuse of being a progressive, has stated "This is a principle of constitutional law of which I had never heard--for the excellent reason that... there is no such principle."

    Much like the draftsmen of the constitution, Roberts and his four colleagues endorse a system of governance rooted 18th century notions of who should rule and whose interests should matter and be protected. Along with Jefferson, Madison and Hamilton, their vision is of a government of, by and for the well-born and the privileged.

    In a society such as ours that still professes to have democratic aspirations, the role of the courts must be to expand and advance the principles of justice and equality, not to retract or retrench. Inequality is incompatible with the full enjoyment of human liberty . As the French Catholic philosopher Jacques Maritain  has emphasized, "the primary reason for which men, united in political society, need the State, is the order of justice. On the other hand, social justice is the crucial need of modern societies. As a result, the primary duty of the modern state is the enforcement of social justice." By that exacting standard, the current Supreme Court is a miserable failure.

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