United States Supreme Court, led by Chief Justice John Roberts, is continuing the Court’s long-standing trend of favoring big business and the rich over justice for average citizens. The following article which appeared in today’s New York Times, summarizes the situation accurately. The link to the article on the New York Times website appears at the bottom of the article.
Justice for Big Business
By Erwin Chemerinsky
IRVINE, Calif. — THE Supreme Court’s momentous decisions last week on affirmative action, voting rights and same-sex marriage overshadowed a disturbing trend: in the final two weeks of its term, the court ruled in favor of big business and closed the courthouse doors to employees, consumers and small businesses seeking remedy for serious injuries.
A majority of the justices seem to believe that it is too easy to sue corporations, so they narrowly construed federal laws to limit such suits. These decisions lack the emotional resonance of the cases involving race and sexuality, but they could have a devastating effect on people who have been wronged by companies.
The three cases involved many different areas of law but shared much in common. The five most conservatives justices — Samuel A. Alito Jr., Anthony M. Kennedy, Antonin Scalia, Clarence Thomas and Chief Justice John G. Roberts Jr. — were in the majority in all cases. All strongly favored big business.
First, the court made it much harder for victims of discrimination to sue. The court had previously ruled that, generally, an employer is strictly liable for sexual harassment by a supervisor, but it can be held liable for sexual harassment by a co-worker only if the employer is negligent. On June 24, in, Vance v. Ball State, the court adopted a narrow definition of who is a “supervisor,” holding that it must be a person empowered to take tangible, adverse actions against the worker, like demoting or firing her, or cutting her pay.
This is just the most recent of several Roberts court decisions that have narrowed the scope of federal employment discrimination protections. The most infamous was Ledbetter v. Goodyear Tire and Rubber, in 2007, in which the court prevented a woman who had been the victim of years of pay discrimination from recovering back pay for most of the time she was employed there, because she did not learn of the disparity until near the end of her employment. Congress passed, and President Obama signed, a law overturning that decision.
Second, the court affirmed that it consistently favors manufacturers over consumers. Two years ago, in Pliva v. Mensing, it held that those injured by generic drugs couldn’t sue manufacturers for failing to adequately warn patients of side effects. This is crucial because nearly 80 percent of all prescriptions in the United States are filled with generic drugs (it would be 90 percent if it were not for drugs for which there is no generic equivalent).
On June 24, the Supreme Court went further. In Mutual Pharmaceutical Company v. Bartlett, it held that makers of generic drugs could not be sued for defects in product design. The case involved a woman who was disfigured after taking a generic pain medication. The court said that federal law pre-empted any recovery under state law for failure to warn of the defects.
Third, the court continued to sharply limit class-action suits against companies. Two years ago, in AT&T Mobility v. Concepcion, the court held that a clause in a consumer contract requiring arbitration of disputes precluded a class-action suit. Vincent and Liza Concepcion were upset when they were charged $30.22 in sales tax after getting “free” cellphones. They wanted to be part of a class action against AT&T for fraud.
The Concepcions, like so many of us, had signed an agreement when they got their phones, and it had a clause that said any dispute with AT & T had to be resolved in arbitration. The California Supreme Court had ruled that such arbitration clauses were not enforceable, because consumers had no realistic choice but to sign. But the United States Supreme Court held, 5 to 4, that the arbitration clause was to be enforced and that since it had to be individual arbitration, it could not be a classwide case. Justice Scalia’s majority opinion spoke of the terrorizing effects of class actions, which can force corporations to settle even frivolous suits. But the reality is that class actions are essential when a large number of people suffer damage, especially when the amounts are small: no one will sue, or even go to arbitration, for $30.22.
On June 20, the court again restricted class actions, in American Express v. Italian Colors Restaurant. The restaurant and other small businesses had brought a class-action suit accusing American Express of violating antitrust law in imposing excessive fees on merchants. The individual plaintiffs could have each recovered just $38,000 under the antitrust statute, but proving an antitrust violation would have cost exponentially more. Therefore, denying a class action meant that the suit could not realistically go forward. The result: a company can violate antitrust law yet immunize itself from liability through an arbitration clause.
These cases evince a disquieting theme about the conservative majority of the Roberts court. It obviously believes, and sometimes expressly says, that there is a need to protect big business from litigation. But in discrimination, product liability and arbitration, it has left injured employees, consumers and small businesses without recourse.
Congress could revise these statutes to allow the suits to go forward, and in the discrimination case, Justice Ruth Bader Ginsburg called on Congress to do just that. But deadlock in Washington does not leave much confidence that Congress will reopen the courthouse doors.
Erwin Chemerinsky is a professor and the dean of the law school at the University of California, Irvine.