From criminal justice to workers’ and voting rights to campaign finance, it has defied customs that buttress the Court’s legitimacy.
by Nan Aron, William Yeomans and Michelle D. Schwartz -- the Nation
John Roberts is entering the stretch run of his tenth term as chief justice of the United States. In-depth assessments will come, but the preliminary results are plain. The man who vowed to act as a neutral umpire calling balls and strikes has led a Court in which racial and religious minorities, women, workers and consumers have struck out regularly, while the economically and politically powerful have walked around the bases.
The chief justice has emerged as a cunning strategist and leader willing to defy the customs and traditions that buttress the Court’s legitimacy. He has led a Court that has repeatedly overreached by taking cases it does not need to hear, answering questions not squarely before it, and ignoring or overruling longstanding precedent—all in the service of deciding the issues that the conservative majority wants to decide, in the manner it wants to decide them. Roberts has been aided in this effort by Justice Samuel Alito, who joined the Court just months after Roberts and has written some of the most radical decisions of the past nine years.
The Court’s march to the right has occasionally been interrupted by the defection of Justice Anthony Kennedy from the conservative majority, resulting in decisions striking down the Defense of Marriage Act and limiting death sentences for low-IQ defendants as well as life imprisonment for juveniles. But even when the chief justice has split with his conservative colleagues, as in upholding the Affordable Care Act (ACA), he has often exacted an enormous toll—in the latter instance, with a ruling that the expansion of Medicaid was fully optional for states. That ruling has deprived millions of affordable healthcare.
In that same case, Roberts employed a recurring technique that has served a right-wing agenda while appearing reasonable. When upholding the ACA as a tax, he wrote an opinion severely—and without precedent—narrowing the scope of congressional power to regulate interstate commerce, a power that has been crucial to upholding social-welfare and civil-rights legislation. The chief justice used the same tactic in 2010, when he convinced seven other members of the Court to sign on to a narrow opinion that laid out the grounds on which the conservative members of the Court would subsequently gut the Voting Rights Act.
The chief justice has also pursued his agenda by telling the pitcher what to throw. In Citizens United, the Court initially heard arguments on a far more modest case, then ordered the parties to prepare briefs for a broader constitutional attack on campaign-finance restrictions and the Court’s own precedents. After re-argument, the Court issued its sweeping ruling in favor of the position it had told the petitioners to take.
The sad irony is that, rather than serve its traditional role as the institution of government where those shut out of the political process can find a voice, the Court has used its rulings to strengthen the already deafening voices of the wealthy and powerful. At the same time, it has insulated itself and the lower federal courts from the pleas of the politically disfavored by slamming shut the courthouse doors.
Here is a list of ten areas in which the Court has failed those Americans most in need of its protection.
§ Access to justice: Georgetown law professor David Cole recently wrote that “what most defines the Roberts Court may be its hostility to courts themselves.” In case after case, the Court has erected new hurdles for those who have been harmed and seek redress in the courts. It has allowed companies to use fine print to take away the right to trial by a jury or a judge for consumers and employees; it has also made it more difficult for victims of corporate wrongdoing to band together, and made it easier for claims of relief to be thrown out of court at the earliest stages. As Justice Elena Kagan wrote in dissent in one such case, the “nutshell version” of the message for those seeking to stand up for their rights in court is: “Too darn bad.”
§ Business: The Roberts Court has made Mitt Romney’s statement that “corporations are people, my friend,” a central component of its jurisprudence. It has imbued corporations with the right to religious expression, as well as the right to free speech through political advertising and unlimited political spending. Spurred on by an elite Supreme Court bar largely in the service of wealthy corporate clients, the Roberts Court has become the most pro-business Supreme Court in generations. According to a study written in part by conservative Seventh Circuit Judge Richard Posner, the five conservatives on the Roberts Court are all among the top ten most pro-business justices since 1946—with Alito and Roberts ranking first and second.
§ Workers’ rights: Justice Ruth Bader Ginsburg wrote in 2013 that the majority of the Court “is blind to the realities of the workplace.” That blindness has manifested itself in decisions limiting government employees’ free speech and collective-bargaining rights; barring Lilly Ledbetter’s claim for decades of pay discrimination; raising the bar for proving age discrimination; preventing more than 1 million Walmart employees from having their day in court to allege gender discrimination; limiting the availability of overtime pay; redefining “supervisor” to allow employers to avoid liability; and making it more difficult for employees to prove retaliation by their employers.
§ Voting rights: The Roberts Court ripped the heart out of the Voting Rights Act in Shelby County v. Holder. In a stunning display of judicial hubris, the Court dismissed the 15,000-page congressional record in support of the act, as well as the language of the Fifteenth Amendment, which empowers Congress to enforce the right to vote free of racial discrimination. The decision was the culmination of a career-long mission by the chief justice to undermine the act, which he fought to limit as a young lawyer in the Reagan administration. And it has unleashed a torrent of state voter-suppression measures that target African-Americans, Latinos, the poor and the young.
§ Campaign finance: Under the banner of protecting speech, the Roberts Court has taken every opportunity to magnify the voices of the wealthy. Citizens United v. FEC, which allows corporations and unions to spend unlimited sums, and McCutcheon v. FEC, which struck down aggregate campaign-contribution limits, presage the destruction of all meaningful campaign-finance regulations and have already contributed to record levels of spending. As Justice Stephen Breyer wrote, these decisions have “eviscerated our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”
§ Rights of the accused: The Roberts Court has forgiven myriad law-enforcement mistakes and abuses, allowing evidence to be used against defendants even when police circumvented the warrant requirements, made factual or legal errors, or relied on nothing more than an anonymous tip; allowing police to interrogate defendants after they requested counsel; and shielding from liability a prosecutor who failed to turn over exculpatory evidence to an innocent defendant who spent years on death row. Yet the Court would not excuse the deadline for filing an appeal when a federal judge gave the defense lawyer the wrong date, prompting then-Justice David Souter to write, “It is intolerable for the judicial system to treat people this way.”
§ Reproductive rights: Perhaps the most striking example of how the makeup of the Court affects its decisions is the area of reproductive rights. In 2007, a majority of the Court upheld a ban on so-called partial-birth abortions that was virtually identical to the ban struck down only seven years earlier—before Justice Alito replaced Justice Sandra Day O’Connor. The same five-justice majority held that the religious rights of employers trumped women’s right to receive comprehensive health-insurance coverage, including coverage for contraceptives.
§ Remedies for racial discrimination: The Roberts Court has prohibited voluntary efforts to integrate schools; made it increasingly difficult for universities to take race into account in their admissions policies; and prohibited a police department from adjusting its promotion practices to avoid racial discrimination. The chief justice summed up his hostility to race-conscious remedies for discrimination in the simplistic statement that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Justice Sonia Sotomayor’s response was powerful: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”
§ Guns: The Court struck a blow against those living in communities plagued by gun violence when the majority held for the first time that the Second Amendment provides an individual right to gun ownership and struck down the gun-violence-prevention laws enacted in Washington, DC. This “law-changing decision,” in the words of then-Justice John Paul Stevens, upended decades-old Supreme Court precedent on which hundreds of judges had relied.
§ Religion: The Roberts Court has drawn sharp lines favoring believers over nonbelievers and majority believers over minority believers. The Court has upheld the practice of beginning town meetings with a (Christian) prayer, denied taxpayers standing to challenge a public-subsidy program that gave money to private (Christian) religious schools, and reversed a decision prohibiting the display of a cross in a federal park. Also, as Justice Ginsburg wrote in her Hobby Lobby dissent, “In a decision of startling breadth, the Court holds that commercial enterprises…can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” In other words, they can impose their religious views on the rest of us.
Although the Court’s docket for its tenth term is not yet complete, it already includes cases that could deprive some 13 million low-income Americans of the subsidies they need to afford health insurance; affect whether as many as 8 million LGBT Americans in thirty-three states can marry; dilute the power of minority voters; permit employers to force women to choose between healthy pregnancies and their jobs; and make it much more difficult to remedy housing discrimination.
John Roberts turned 60 in January. Because of lifetime tenure, we may be looking at another two decades or more with Roberts as chief justice. But two of his fellow conservative justices—Scalia and Kennedy—are 78. It is likely that the next president will nominate their replacements, as well as those for 81-year-old Ruth Bader Ginsburg and 76-year-old Stephen Breyer. The 2016 presidential election is likely to determine the Court’s direction for at least a generation. Will it be a Roberts Court in which the chief justice is consistently in the majority, or will it be one in which Roberts plays the role of dissenter as he watches a progressive majority remedy the damage of his first decade? The voters will decide.
The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.
ANATOLE FRANCE, The Red Lily
I don't go by what the law say. The law's liable to say anything. I go by if it's right or not. It don't matter what the law say. I take and look at it for myself.
AUGUST WILSON, The Piano Lesson
Laws grind the poor, and rich men rule the law.
OLIVER GOLDSMITH, The Traveller
The law was made for one thing alone, for the exploitation of those who don't understand it.
BERTOLT BRECHT, The Threepenny Opera
Law is not law, if it violates the principles of eternal justice.
LYDIA MARIA CHILD, speech, 1861
A law is valuable, not because it is a law, but because there is right in it.
HENRY WARD BEECHER, Life Thoughts
a first grader can understand what's "Fair"!
Abolish the Supreme Court?
American Policy Roundtable
Is it time to abolish the United States Supreme Court? We'll talk about it, on today's edition of The Public Square.
Yes, it sounds pretty radical - abolishing the U.S. Supreme Court. The framers of the Constitution took such great care to balance our federal government between the legislative, executive, and judicial branches. Abolishing one branch seems rather extreme, but think about it.
Nine judges appointed, not elected...appointed for life, accountable to absolutely no one on this earth. In recent years, they've acted as judge, jury, and executioner over the process of public policy at every level in America.
The people want term limits and worked to pass laws in 24 states. "Too bad," says the Court.
Abortion divides the soul of the Nation. States desire to draft laws to protect innocent human life. "Tough luck," says the Court.
The citizens of Colorado go to the polls. They pass a law to protect themselves from granting special rights based on sexual preference. "No way," says the Court.
People want to pray in school. "Too bad," says the Court.
Nine people appointed for life, accountable to no one on earth...with the power to make every law stand or fall as they choose? Is this what the framers of the Constitution had in mind?
If abolishing the Court sounds too extreme - and it really is - what about limiting their terms of office? What about limiting the terms of all federal judges? Should any federal judge be permitted, unelected, to sit in office for life?
the public is screwed by the supreme court again and again...
Forced Arbitration: Supplanting Our Court Justice System
By Gary Feuerberg, Epoch Times
WASHINGTON—Having one’s day in court is a popular, colloquial expression in America. We take for granted our right to equality of the law before an impartial judge and jury.
However, most Americans are unaware that for everyday disputes arising over the necessities of life—credit cards, purchasing an automobile, employment contracts, investments, mobile phone service—having one’s day in court has become a thing of the past. Why? Because virtually all of us gave that right up when we signed contracts with forced arbitration clauses that waive the right to take a claim to court.
These clauses are usually buried in the fine print of contracts setting forth the conditions of service.
The vast majority of Americans have no idea of the rights they have supposedly given up in fine print contracts.— Paul Bland, executive director, Public Justice
“Whether it is a credit card agreement, Netflix, Verizon, nursing homes—almost everything we buy or purchase—is governed by a contract, which has the fine print language that essentially bars us from going to a state or federal court to get some hearing for the problem,” said Nan Aron, president of Alliance for Justice, a national association of over 100 public interest and civil rights organizations.
Ms. Aron was speaking on a panel, Jan. 29, discussing “Lost in the Fine Print,” at the progressive think tank, Economic Policy Institute. The event was co-hosted by AFJ, EPI, American Constitution Society, and Center for American Progress.
Paul Bland said, “[Forced arbitration clauses] are omnipresent in American society now.” More than 95 percent of all credit card debts are subject to forced arbitration clauses; when buying a car, used or new, virtually all contracts have the clause, and more than 90 percent of the nursing homes have them, he said.
Bland is executive director and senior attorney at Public Justice, and has made this issue his specialty. He has testified before both houses of Congress, has been quoted in more than 100 periodicals, and has appeared often in radio and TV stories.
Forced arbitration is ubiquitous. Alliance for Justice provided some examples: cable and satellite companies, including Comcast, Time Warner and DirecTV; mobile phone companies Verizon Wireless, AT&T, Sprint, T-Mobile, TracFone, and Cricket; credit card issuers American Express, Chase, Citibank, Discover, and Wells Fargo; investment services Vanguard, Fidelity, E-Trade, and Charles Schwab; and online services like Amazon, Netflix, Instagram, Spotify, Ticketmaster, and Microsoft.
“The vast majority of Americans have no idea of the rights they have supposedly given up in fine print contracts,” said Bland.
Shown at the event was “Lost in the Fine Print,” –a film produced by AFJ, released on Oct. 6, 2014. See Film Here:
Narrated by former Secretary of Labor Robert Reich, the film describes the lives of three ordinary Americans who came face-to-face with the forced arbitration clause and lost the opportunity to take their case to court. Reich said it is a rigged system.
Perhaps the most surprising case involved Maj. Nicole Mitchell, who had served over 20 years in the Air Force Reserve and was a member of the elite Hurricane Hunters. Everything was fine at her job at The Weather Channel, where she was a popular on-the-air contributor. But in 2008, NBC bought The Weather Channel, and its management began to complain about her training obligations. She was fired in 2010, just four days after she returned from the two-week annual training that she is required to do.
I really don’t think this is what people want their justice system to be like.— Maj. Nicole Mitchell
The employer probably violated federal law that protects service members from demotion or penalty in fulfilling their service to the country. But Maj. Mitchell could not sue her employer. She was bound by the forced arbitration clause in the employment contract she had been compelled to sign, said Reich.
Mitchell never even met the arbitrator. She says in the film, “I really don’t think this is what people want their justice system to be like.”
Her problem with her employer was not unusual. Many Guards and Reservists have told her, “We went through the same thing,” she said.
Arbitration can be an affordable and efficient alternative to courts to resolve legal disputes when the arbitrator is neutral. But in the case of Mitchell, the decision-maker was chosen by the same company that allegedly wronged her.
Class action lawsuits enable a person or business of small means to challenge the powerful corporations. Many forced arbitration clauses include a ban on class action suits. The case, American Express Company v. Italian Colors Restaurant, is discussed in the film, where a class action lawsuit was denied by the Supreme Court in 2013.
Alan Carlson had been co-owner of a neighborhood restaurant in Oakland, Calif., for 41 years. About 12 years ago, he noticed that the charges for the American Express swipes were quite high, 30 percent more than Visa or MasterCard. It was costing between $53,000 and $60,000 annually, which is a lot for a small business, according to the other co-owner, Steve Montgomery. American Express is preferred by corporations and high-end customers, and so the business really has no choice but to pay the fees.
Other small businesses had the same complaint with American Express, and so they wanted to join together to sue American Express, charging that as a monopoly, American Express violated antitrust laws. But their contracts with American Express required that their claims be submitted as individual arbitration. Before the Supreme Court, they argued that the costs of pursuing a claim could exceed $1 million, but the maximum recovery for the individual plaintiff would be no more than $38,000. The only practical way to sue American Express was by class action.
[The court’s majority opinion was] a betrayal of our precedents, and of federal statutes like antitrust laws.— Elena Kagan, U.S. Supreme Court Justice, dissent opinion
The Supreme Court ruled 5-3 against the small businesses. The restaurant owners and the other small businesses will never get their day in court. Justice Antonin Scalia, writing for the majority, said essentially that the Federal Arbitration Act of 1925, which rules arbitrage law, makes legitimate these contracts and it takes precedent over other laws, even though antitrust laws may have been violated. Courts cannot invalidate the barring of class action stated in the contract on the grounds that the plaintiff’s costs of individually pursuing a suit exceeds the potential recovery, he wrote.
Justice Elena Kagan’s dissent said that the Court’s opinion was a “betrayal of our precedents and of federal statutes like antitrust laws.” She thought it was outrageous that American Express can break antitrust laws and the victims have no legal recourse in the courts from which they are barred.
The implications of the American Express decision are immense. Bland said, “It was essentially a green light to corporations to write these clauses into its contracts.”
Other federal statutes can become just as precarious as the antitrust laws. For all practical purposes, forced arbitration clauses and bans on class action can nullify the consumer, employee, and civil rights protections defined in the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal Pay Act, and the Fair Housing Act.
There is some hope for relief. The Consumer Financial Protection Bureau (CFPB) has been looking at forced arbitration and soon will finalize a study. CFPB issued a rule, effective in June 2013, which prohibits forced arbitration clauses in mortgage and home equity contracts, according AFJ. The Bureau has the broad authority under Dodd-Frank to ban forced arbitration in all consumer financial contracts, including credit card
Many of the disadvantages of forced arbitration are frequently mentioned. Unlike public courts, most arbitration cases are treated as confidential, according to AFJ. Transcription is not required, and so the details of the case and the results are not in public view. Corporate wrongdoing can be kept secret. Also, arbitration cases can rarely be subject to court review.
Several major firms offer arbitration services from which business can choose. These firms have a financial incentive to rule for the company that selects them if they want to retain a long-term business relationship. These companies will remove an arbitrator who is not on board.
“One NAF arbitrator, a Harvard law professor, was blackballed after she awarded $48,000 to a consumer in a case in which a credit card company filed a claim against the consumer,” states the 2007 Public Citizen report, “The Arbitration Trap.” NAF didn’t want to use her anymore. Compelled to resign, she said that NAF had a bias in favor of the financial services industry.
One study on credit cards in 2007, commissioned by Public Citizen, found that over 94 percent of the time arbitrators from the National Arbitration Forum (NAF) ruled in favor of the companies over the consumer. A spokesperson for the Arbitration Forum responded on the study that the only meaningful comparison is with the courts, and that consumer outcomes in arbitration are the same.
“If you violate laws of God, you're a sinner.
If you violate laws of men, you're a criminal.
If you violate your own laws, you're pathetic.”
― Toba Beta, Master of Stupidity
of Various Subjects