The Supreme Court in the Citizens United Era: Putting Big Business First
Marge Baker
Commentary
Americans generally recognize the importance of having their “day in court”—and with good reason. The courtroom is one of the few venues in our society where differences of wealth and power should take a back seat to the principle that every person should be treated with fundamental fairness.
In Citizens United v. the Federal Election Commission, a 5-4 decision handed down in January 2010, the Supreme Court overturned the 2002 Bipartisan Campaign Reform Act’s restrictions prohibiting corporations from using general treasury funds to promote the election or defeat of a federal political candidate by means of independent expenditures. The decision reopened the spigot of money pouring into elections, and with it, the increased risk—and certainly increased perception—of corrupt, quid-pro-quo politics. Simply put, the decision found that, regarding independent campaign expenditures, corporations have the same right as individual Americans.
Many saw this decision as part of a larger picture where individual, flesh-and-blood Americans have fared quite poorly before the Court. In the Court’s most recently completed term, which ended in June 2011, plaintiffs trying to hold large corporations accountable found themselves in situations familiar to many Americans: trying to protect their legal rights to be treated fairly by their cell phone company, trying to be informed of a medication’s known risks, trying to have the safest possible vaccinations for their children, and fighting to have a workplace free of pervasive sex discrimination. In each case, the Supreme Court refused to let people go to court to press their claims. With the courtroom door closed, Americans’ so-called rights make no difference when it really counts.
Progressives have long known of the far right’s efforts to enhance the power of the state to engage in warrantless searches, dilute church-state separation, and insulate the government from all manner of lawsuits. But Citizens United made clear that their agenda is larger than that. As confirmed by the just-concluded 2010-2011 Supreme Court term, the Citizens United-era is characterized by decisions that have the effect of preventing ordinary Americans from imposing reasonable restrictions on those who hold immense power, especially large corporations, or from holding them accountable when they do wrong.
In two cases last term, the Supreme Court severely weakened access to class action lawsuits, a critically important tool that is often the only way to hold corporate wrongdoers accountable. Large corporations, with resources dwarfing those available to the average individual, clearly benefit when their victims are unable to pool resources through a class action.
In AT&T Mobility v. Concepcion, the Supreme Court made it much easier for powerful corporations to cheat their customers with impunity. AT&T had offered consumers a free phone, but then charged them for the taxes on the undiscounted price of the phone. Few people would notice the relatively small charge, and even fewer would go to the trouble of taking action on their own to get their money back; only class action would make this alleged scheme unprofitable. However, AT&T’s contracts required consumers to agree to resolve disputes through arbitration and without class action. California outlaws contracts where one party holds all the power and is able to dictate terms that empower it to victimize the other. But the Supreme Court ruled, 5-4, that the Federal Arbitration Act required compliance with the otherwise illegal contract, making class action impossible.
The case’s implications go beyond consumer protection, since many large companies require new employees to agree, as a condition of employment, to resolve conflicts through arbitration, with a ban on class action. With their substantially weaker bargaining position, the potential new employees are in no position to reject the demand. As a result, AT&T v. Concepcion’s logic may enable such employers to cut off the most efficient method of antidiscrimination enforcement by simply refusing to hire anyone who does not agree to waive class action remedies for future employment-related disputes.
The Supreme Court more directly limited employment discrimination class action cases in its 5-4 decision in Wal-Mart v. Dukes. Suing on behalf of as many as 1.5 million women employees of Wal-Mart stores around the country, the plaintiffs showed a number of common factors that affected them all. These included lower salaries than men, a workplace environment for managers that denigrates women, and a policy of allowing the male managers who were products of that toxic managerial environment to use their discretion in making employment and promotion decisions.
But rather than focus on factors the women have in common that could unite them as a class, the majority focused on the inevitable differences among such a large group of employees and ruled they could never have enough in common to form a class. With giant employers such as Wal-Mart becoming more common, this radical interpretation of class action rules threatens employees around the country. Individual employees or small groups of employees in a particular store or region are unlikely to have the resources (or job security) needed to litigate against their employer, a problem that class action was designed to solve. In addition, even if their lawsuits resolve local or even regional problems, they are unlikely to resolve the nationwide systemic causes of discrimination.
Vulnerable employees are hardly the only ones who need to worry after the Supreme Court’s most recent term. Anyone taking prescription drugs or vaccinating their kids also had fewer rights at the end of the term then they did at the beginning. The case of PLIVA v. Mensing involved a woman seriously injured by her generic prescription drugs. She sued the manufacturer in state court over its failure to warn of risks the company knew were much greater than had been believed at the time the FDA approved its labeling. However, the Court, in another 5-4 decision, ruled that she had no right to sue because the federal requirement that generic drug labels match brand-name labels made it impossible for the generic drug maker to take action to warn people about its product. The ruling contradicts a recent Court case holding that someone can sue a brand-name drug manufacturer in state court for failure to warn, which means that an injured person’s ability to sue now depends on whether the pharmacy happened to give her brand-name of prescription drugs.
Another case involved six-month-old Hannah Bruesewitz, who developed a serious seizure disorder after getting one of her regular vaccinations. Her parents sued the drug maker, saying it could have avoided damage caused by a scientifically outmoded vaccine by fulfilling its duty under state products liability law to improve its vaccines in light of technological and scientific advancements. The Supreme Court ruled, 6-2, that such state law obligations are pre-empted by a federal law on childhood vaccinations.
While these were far from the only cases of concern last term, they typify the current Supreme Court’s tendency during the Citizens United-era to twist the law in order to benefit the powerful at the expense of ordinary, but vulnerable, people doing ordinary things: buying cell phones, taking medicine, protecting their kids, and trying to earn enough to pay the bills.
Many people fear how this trend will manifest itself during the 2011-2012 term, which began in October 2011. In fact, the Supreme Court in January 2012 closed the courthouse door to victims of deceptive advertising for credit cards (CompuCredit v. Greenwood). Progres-sives worry that the courtroom door may be closed in similar fashion to the families of railroad employees fatally exposed to asbestos (Kurns v. Railroad Friction Products), the families of oil and gas workers killed on the job (Pacific Operations v. Valladolid), shareholders seeking to hold corporate insiders accountable (Credit Suisse Securities v. Simmonds), and employees wrongfully fired on the basis of disability (Hosanna-Tabor Church v. EEOC).
As the Supreme Court said in the landmark 1803 case of Marbury v. Madison, “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection.” The Court added: “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.”
Marge Baker is executive vice president for policy and program at People For the American Way Foundation.
