When the Supreme Court adjourned for its summer recess last year, the court’s conservative majority was under fire for having opened the floodgates to unlimited political spending by corporations. The ruling in the Citizens United case seemed to many emblematic of the Roberts Court’s undue solicitude for the rights and interests of corporations.
This year, the justices left Washington with the court’s conservative majority under fire again for rulings that benefited business interests. The Roberts Court was seen by many as having closed the courthouse doors to ordinary Americans seeking justice for wrongs done to them in the workplace or marketplace.
“We take so seriously in this country the notion that any person with a claim should have his or her day in court,” said Erwin Chemerinsky, the liberal dean of the University of California-Irvine Law School. “But a majority of the Supreme Court doesn’t seem to believe it.”
Far from denying the accusation, many of the court’s admirers acknowledge that the conservative majority is deeply skeptical of litigation. The Roberts Court “sees the court system as being overused and misused by whoever’s invoking it,” says Tom Goldstein, Supreme Court advocate and founder of SCOTUSBlog.
“The Supreme Court is not going to expand existing precedents to allow more litigation,” says Jonathan Adler, a conservative constitutional law expert at Case Western Reserve University School of Law. “You see that across a wide range of areas.”
As prime examples, the court’s critics cite the two headline-making decisions that will make it harder for plaintiffs to mount broad legal attacks against discrimination in the workplace or corporate fraud in the marketplace. Both decisions gutting the big sex discrimination suit against Wal-Mart and barring a class action by cell phone customers against AT&T came on 5-4 votes that pitted the court’s conservative majority against the liberal bloc.
A review of the full term confirms Adler’s point that the court’s aversion to litigation runs across many areas. The victims of the court’s attitude come from all walks of life. A blue-collar worker in New Jersey injured on the job by an allegedly defective machine is told he must sue the manufacturer in England. Women in Louisiana and Minnesota suffering from a debilitating side effect of a prescription medication are blocked from suing the drug makers. A Louisiana man wrongfully convicted of murder because of prosecutorial misconduct loses his bid to hold the district attorney’s office liable
Prison inmates will not be allowed to recover damages for violations of their religious rights. Anyone detained by the government using the material witness statute as a pretext cannot recover for loss of liberty. Taxpayers will find it harder to challenge government tax policies that breach the separation of church and state.
The cases that reach the Supreme Court are rarely open and shut, so there are two sides to each of these cases. Some turn on dissection of federal statutes, others on application of Supreme Court precedents. Some are by 5-4 votes, others by a broader majority. But they share a common theme. The Roberts Court sees no need to read laws and interpret past decisions when possible to open the courthouse door and assure plaintiffs a viable path to legal remedy.
The ruling in Wal-Mart Stores, Inc. v. Dukes raises the burden on plaintiffs in a job discrimination case to produce evidence of a company’s wrongdoing at a preliminary stage or pursue the suit through individual complaints instead of a class action. The decision in AT&T v. Concepcion gives businesses a roadmap to enforce arbitration clauses in preprinted consumer contracts that consign a defrauded customer to individual instead of classwide arbitration. The majority in each case was indifferent to the likelihood that many workers or consumers would never be able to take their claims to court.
The injured worker in J. McIntyre Machinery, Ltd. v. Nicastro was blocked from suing in New Jersey by a 6-3 majority blind to the English manufacturer’s business-seeking in the United States. The 5-4 majority in PLIVA, Inc. v. Mensing read federal drug regulations so woodenly as to exempt a generic drug manufacturer from any ongoing duty to warn users of side effects. The 5-4 majority in Connick v. Thompson rejected evidence from the wrongfully convicted plaintiff that disregard of an important constitutional rule was standard practice in the Orleans Parish district attorney’s office.
In Sossamon v. Texas, the 6-2 majority held that a federal law providing state prisoners “appropriate relief” against state governments for violations of their religious rights does not allow monetary damages as one of the possible remedies. A five-justice majority in Ashcroft v. Al-Kidd gave the government carte blanche to use the material witness statute to jail someone when there is not enough evidence for an arrest. In Arizona Christian School Tuition Organization v. Winn, the 5-4 majority repudiated a line of decisions allowing taxpayers legal standing to challenge tax policies as violations of the Establishment Clause.
The court’s admirers find these rulings sound examples of judicial restraint. But the court-made rules created in these decisions also reflect a conscious policy preference that is at tension with the inscription above the Supreme Court’s doors: Equal Justice Under Law.