Access to Justice

  • July 3, 2013
    Guest Post

    by Professor Anthony F. Renzo. Professor Renzo is teaching Constitutional Rights at the University of New Mexico School of Law.

    The close of the latest term of the Roberts Court provided more evidence of the conservative majority’s interest in protecting corporate America and government officials from being held accountable for violating the rights of everyday Americans. This includes hostility to challenges to abusive and unconstitutional actions by the federal government in its perpetual war on terror and the massive spying network that this war has spawned.

    The prime example from the latest term is the high court’s opinion in Clapper v. Amnesty International, which slammed the courthouse doors on a challenge to the broad and unchecked spying powers authorized by Congress in the 2008 Amendment to the Foreign Intelligence Surveillance Act (FISA)(50 U.S.C. § 1881a.)  That Amendment, §1881a, vastly expands the government’s electronic surveillance powers by authorizing sweeping wiretaps even if the targets are not foreign agents or linked directly to terrorism. These powers include dragnet type surveillance operations of large categories of phone or email addresses that are not limited to any one individual or any particular place. While the statute limits targets to “non-U.S. persons,” the private conversations of those targets with American citizens and residents are not excluded from its scope. In any event, to the extent the statute imposes any meaningful limitations on the scope of the surveillance it authorizes, these limitations do not have the force of law because §1881a eliminates the requirement of a judicial warrant based on individualized probable cause. In effect, §1881a  strips the FISA Court of its checking power, replacing independent judicial review with a certification process that effectively makes the assertions of the Attorney General and the Director of National Intelligence conclusive evidence of the legality of the Executive’s own spying operations with no meaningful judicial oversight or constitutional scrutiny.

  • July 2, 2013

    by Jeremy Leaming

    Senate Republicans’ agenda of delaying or scuttling judicial nominations has had a particularly corrosive impact on the U.S. District Courts where there are currently 65 vacancies. A July 2 report from the Brennan Center for Justice reveals the large number of vacancies has stayed consistent for five consecutive years for the first time in 20 years.

    Brennan Center Counsel Alicia Bannon in a statement about the report said, “Our trial courts are in trouble. As seats remain unfilled, millions of Americans who rely on district courts are being denied the justice they deserve. District courts can no longer wait. The president and the Senate must find a way to fill these crucial seats. The report, authored by Bannon, also finds that “average caseload in 2009-2012 was 13 percent higher than the average for the preceding four years. Had all vacancies been filled between 2009 and 2012, judges would have had an average of 42 fewer pending cases each year.”

    The larger caseloads are hampering the ability of district courts nationwide to dispense justice, but are having, the report says, an even greater burden on districts where judicial emergencies exist. “Analysis shows that judicial emergencies – a designation of districts with an acute need for judges – have been higher in 2010-2012 than at any other point since 2002,” the Brennan Center notes.

    The report cites several factors that “likely account for the unusually high and sustained level of district court vacancies since 2009. District courts experienced an atypically large number of retirements during the first three years of the Obama presidency, leading to a surge in the number open seats, while at the same time, fewer total district court nominees were confirmed during President Obama’s first term than in other recent administrations. Nominees also faced record wait times from nomination to confirmation in the Senate as compared to other recent administrations, and the President trailed his predecessors with respect to the number of judges nominated during his first three years in office. Finally, many home state senators have been slow to recommend nominees to the President, particularly in states with two Republican senators, which has delayed the process of identifying the nominees.”

    Other reports have shown that Obama has long since picked up the pace of putting forth nominees, but Senate Republicans have not altered their agenda of obstruction. Republicans led by Sen. Mitch McConnell (R-Ky.) have not only continued to slow-walk the president’s judicial nominations, they are holding up his nominations to the Environmental Protection Agency, the Department of Labor, the Consumer Financial Protection Bureau, and nominations to the five-member National Labor Relations Board. Sen. Chuck Grassley (R-Iowa) has even pushed a measure to cut the number of judgeships on the powerful U.S. Court of Appeals for the District of Columbia Circuit.  

  • June 28, 2013
    Guest Post

    by Emily J. Martin,  Vice President and General Counsel at the National Women's Law Center

    You may have missed it in the flurry of newsmaking by the Supreme Court this week, but on Monday, five of the Justices gave early Christmas presents to defendants accused of employment discrimination, when the Court handed down important decisions in two Title VII cases: Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar.  In both Vance and Nassar, the 5-4 decisions ignored the realities of the workplace and the ways in which employment discrimination and harassment play out every day.  Placing new obstacles in the path of workers seeking to vindicate their rights, the Court set aside the longstanding interpretations of the Equal Employment Opportunity Commission (the agency charged with enforcing Title VII), and closed out a term in which the Court repeatedly limited the ability of individuals to challenge the actions of powerful corporations.

    Justice Samuel Alito wrote the Vance decision.  Prior cases have held that when a plaintiff shows she was sexually harassed, or racially harassed, or harassed on some other unlawful basis by a supervisor, her employer is liable, unless the employer can prove that the plaintiff unreasonably failed to take advantage of a process that the employer provided for addressing harassment. An employer is only liable for harassment by a co-worker, however, when a plaintiff can show that the employer was negligent in controlling working conditions—a far tougher standard.  Vance posed the question of who is a supervisor: Is it only someone who has the authority to hire, fire, or take other tangible employment actions? Or is it anyone who oversees and directs the plaintiff’s work on a day-to-day basis? Ignoring the ways in which day-to-day supervisors have been invested with authority over other employees that empowers them to harass, the Court ruled on Monday that employers are not vicariously liable for harassment by day-to-day supervisors who do not have the authority to hire, fire, and the like. Indeed, showing even more solicitousness for the interests of employers than the defendant in the case had shown for itself, the majority adopted an even narrower interpretation of the word “supervisor” than had been urged by Ball State.

  • June 20, 2013
    Guest Post

    by Paul Bland, Senior Attorney, Public Justice. This piece is cross-posted at Public Justice’s blog.

    So, today, in American Express v. Italian Colors, the U.S. Supreme Court said that a take-it-or-leave-it arbitration clause could be used to prevent small businesses from actually pursuing their claims for abuse of monopoly power under the antitrust laws. Essentially, the Court said today that their favorite statute in the entire code is the Federal Arbitration Act, and it can be used to wipe away nearly any other statute.

    As Justice Kagan said in a bang-on, accurate and clear-sighted dissent, this is a "BETRAYAL" (strong word, eh?) of the Court's prior arbitration decisions. You see, until now, the Supreme Court has said that courts should only enforce arbitration clauses where a party could "effectively vindicate its statutory rights." Today, in a sleight of hand, the five conservative justices said that this means that arbitration clauses should be enforced even when they make it impossible for parties to actually vindicate their statutory rights, so long as they have a theoretical "right" to pursue that remedy.

    The plaintiffs in this case, restaurants and other small merchants, claim that American Express uses its monopoly power over its charge card to force them to accept American Express's credit cards and pay higher rates than they would for other credit cards. This is called a "tying arrangement" under the antitrust laws -- American Express is alleged to be using its monopoly power over one product to jack up the price of another product to higher rates than it could charge in a competitive market.

  • June 20, 2013
    Guest Post

    by John Vail, Vice President and Senior Litigation Counsel, Center for Constitutional Litigation

    In a decision one justice called a “betrayal of our precedents,” the Supreme Court today ruled that corporations can use arbitration clauses to insulate themselves from liability.  

    The decision culminates a thirty year judicial effort by the Court to turn an innocuous 1920s statute, the Federal Arbitration Act, into a weapon used to thwart enforcement of rights by consumers, employees, and small businesses. 

    In American Express v. Italian Colors Restaurant, a restaurant filed a class action complaining that American Express had used monopoly power to force merchants to accept credit cards at rates approximately 30 percent higher than the fees for competing credit cards, in violation of antitrust statutes.  American Express moved to compel arbitration based on a clause in its agreement with the restaurant that provided, in part, “[t]here shall be no right or authority for any Claims to be arbitrated on a class action basis.”

    The restaurant -- invoking a line of Supreme Court cases that held open the possibility courts could invalidate arbitration clauses that effectively precluded vindication of federal statutory rights -- opposed arbitration.  It demonstrated that costs of litigating an individual claim were “’at least several hundred thousand dol­lars, and might exceed $1 million,’ while the maximum recovery for an individual plaintiff would be $12,850, or $38,549 when trebled,” and argued that preclusion class resolution effectively precluded it from vindicating its claim. 

    The Second Circuit agreed, having held that “the only economically feasible means for . . . enforcing [respondents’] statutory rights is via a class action.” The Supreme Court reversed.

    The Court, with Justice Scalia writing for a five person majority, first found nothing specific in the antitrust laws  - no “congressional command “ - requiring the Court  to reject the waiver of class arbitration.“The antitrust laws do not ‘evinc[e] an intention to pre­clude a waiver’ of class-action procedure.”

    The Court also found no “entitlement to class proceedings for the vindication of statutory rights” flowing from congressional approval of Rule 23, noting that in AT&T Mobility v. Concepcion it already had rejected the argument that “federal law secures a nonwaivable opportunity to vindicate federal policies by satisfying the procedural strictures of Rule 23 or invoking some other informal class mechanism in arbitration.”