Procedural Barriers to Court

  • October 19, 2012

    by Jeremy Leaming

    Too many progressives have faltered in highlighting the impact nine justices on the nation’s highest court can have on the lives of millions of Americans. The Constitutional Accountability Center’s Simon Lazarus lays the case out over at CAC’s Text and History Blog, noting that during the second presidential debate an opportunity was missed to show how the conservative justices of the Roberts Court increasingly advance corporate interests, while making life tougher on individuals.

    As Lazarus notes, a question from the town hall audience prompted the candidates try and address the ongoing lack of pay equity – women still earn significantly less than their male counterparts. President Obama responded by highlighting his signing of the Lilly Ledbetter Fair Pay Act. The law was named after the Alabama women who struggled to hold Goodyear Tire & Rubber Company accountable for paying her far less than men at the company doing the same work. After Ledbetter (pictured) sued the company, a jury found in her favor and awarded her hundreds of thousands of dollars in back pay. But the company appealed and the case eventually reached the high court in 2007. The rightwing bloc of the Supreme Court in Ledbetter v. Goodyear Tire reversed course and found that Ledbetter could not move forward with her lawsuit under Title VII of the Civil Rights Act of 1964 seeking equal pay for equal work. The rightwing justices essentially said that Ledbetter had waited too long to bring the action, even though she did not discover the discrimination until her retirement from the Goodyear Tire plant.

    During this year’s ACS National Convention, Justice Ruth Bader Ginsburg, who lodged a dissent in Ledbetter, said the decision was “entirely out of touch with the real world of work.”

    The Ledbetter Act trumps the high court’s out-of-touch majority opinion by allowing for a realistic timeframe for workers to bring employment discrimination cases.

    But Lazarus says progressives, including the president, have failed to “take a cue from Senator [Patrick] Leahy, who has held numerous hearings over the past four years to ‘shine a light on how the Supreme Court’s decisions affect Americans’ everyday lives.’”

  • July 23, 2012
    Guest Post

    By Stephen I. Vladeck, professor of law and associate dean for scholarship at American University Washington College of Law


    There’s quite a lot to say about the damages suit filed last week by the American Civil Liberties Union and the Center for Constitutional Rights on behalf of the family of Anwar al-Aulaqi and his 16-year-old son Abdulrahman, both of whom were killed (along with a third U.S. citizen) in a pair of drone strikes in Yemen in the fall 0f 2011. And although the suit raises a host of important and thorny legal questions of first impression, including whether a non-international armed conflict existed in Yemen at the time of the strikes and whether a U.S. citizen can claim a substantive due process right not to be collateral damage in an otherwise lawful military operation, I suspect my Lawfare colleague Ben Wittes is quite correct that this case won’t actually resolve any of them. Instead, as Ben suggests, it seems likely that the federal courts will refuse to recognize a “Bivens” remedy — a cause of action for damages arising directly out of the constitutional provision allegedly offended (e.g., the Fifth Amendment’s Due Process Clause), and that the plaintiffs will therefore be unable to state a valid cause of action.

    As I explain below, such a result would unfortunately perpetuate a fundamental — and increasingly pervasive — misunderstanding of Bivens. Moreover, even if plaintiffs will ultimately lose suits like Al-Aulaqi because of various defenses — including qualified immunity, the state secrets privilege, and the political question doctrine — getting the Bivens question right still matters. To the extent that the specter of judicial review deters governmental misconduct down the road, Bivens suits can and should have a salutary effect on the conduct of U.S. national security policy — so long as they’re properly understood in the first place.

  • March 21, 2012
    Guest Post

    By Sarah Crawford, Director of Workplace Fairness, National Partnership for Women & Families


    “This grading of Congress’s homework is a task we are ill suited to perform and ill advised to undertake.” 

    -- Justice Scalia’s concurring opinion in Coleman v. Maryland Court of Appeals

    By a narrow majority, the U.S. Supreme Court’s decision in Coleman v. Maryland Court of Appeals – has eroded the right of millions of state workers to take job-protected leave under the Family and Medical Leave Act of 1993 (FMLA) when faced with a serious illness, injury, or pregnancy. In these tough economic times of high unemployment, the Supreme Court has dealt another devastating blow to millions of workers – making them vulnerable to losing their jobs if they need time off for medical leave. The Court ruled that states cannot be sued for monetary damages for violating the FMLA’s medical leave provision, leaving state workers with little meaningful recourse if their employers deny the self-care leave guaranteed by the plain language of the FMLA.

    The FMLA set an important family and medical leave standard that guarantees eligible workers – both women and men – up to 12 weeks of job-protected, unpaid leave to recover from a serious illness or medical condition, including pregnancy or childbirth, or to care for a newborn, a newly adopted child or a seriously ill family member.

    Since its enactment 19 years ago, workers have used the FMLA more than 100 million times. The law has helped workers disabled by pregnancy or recovering from childbirth, workers with new babies and dying parents, workers who have had heart attacks and hysterectomies – in short, workers for whom job-protected leave is of critical importance.

    Petitioner Daniel Coleman was one such worker facing a serious illness who sought to exercise his rights to medical leave. He was working for a Maryland court when his doctor ordered bed rest. After requesting medical leave, Coleman was fired the next day. He then filed a lawsuit alleging a violation of the FMLA.

  • March 9, 2012

    by Nicole Flatow

    The U.S. Supreme Court’s decision last year in AT&T Mobility v. Concepcion was a major blow to consumers’ ability to file class actions and hold corporations accountable. In the 5-4 decision, the majority rejected a lower court ruling that an arbitration clause was unconscionable because it barred class actions.

    But a recent federal appeals court decision that considered Concepcion as precedent may pave a way forward for litigants seeking to challenge corporate action as a class, writes Philadelphia litigator Joshua D. Wolson on The Legal Intelligencer Blog.

    In In re American Express Merchants Litig., the Second Circuit held that an arbitration clause containing a class action waiver was unenforceable. The case was twice reversed by the U.S. Supreme Court for reconsideration in light of Concepcion and another limiting Supreme Court precedent, and twice more, the court maintained its holding.

    In striking down the class action waiver, the court relied on an affidavit from an economist, which showed that no rational plaintiff would bear the cost alone of winning such a complicated antitrust case, when the potential payout was so comparatively small. 

    “The evidence presented by plaintiffs here establishes, as a matter of law, that the cost of plaintiffs' individually arbitrating their dispute with Amex would be prohibitive, effectively depriving plaintiffs of the statutory protections of the antitrust laws,” the judges wrote.

    If plaintiffs can overcome class action bans by providing affidavits from economic experts, perhaps there is a future for consumer class actions, Wolson writes. But, he cautions, “it seems likely that the Supreme Court will have the last word.”

  • February 23, 2012
    Guest Post

    By Rochelle Bobroff, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center


    The Supreme Court’s 5-4 decision in Douglas v. Independent Living Center, a case challenging California’s cuts in Medicaid reimbursement rates, can be summed up by the movie title: The Good, The Bad, and the Ugly.  The Good is the majority’s holding that refuses to deny court access to low-income Medicaid beneficiaries who had difficulty obtaining medications and other services when California slashed rates in violation of federal law.  The Bad is the narrowness of the court’s decision, which is limited to simple instructions to the lower court on remand.  And the Ugly is the dissent seeking to slam the courthouse doors on the poor.

    The plot (or facts) in this case bears no resemblance to the movie.  When California slashed Medicaid provider rates to save money, ignoring the impact on beneficiary access to care, providers and beneficiaries sued the state.  Federal Medicaid law requires states to ensure adequate access to care.  So, the state laws cutting reimbursement rates conflicted with federal law.  The suit alleged that the state rate cut statute was “preempted” under the Supremacy Clause of the Constitution by the contrary federal law.  Businesses routinely bring preemption challenges to state laws that allegedly conflict with federal law. 

    The state tried to get the case thrown out of court, arguing that beneficiaries could not bring a preemption suit to enforce the Medicaid statute.  But the Ninth Circuit, relying on over a century of Supreme Court cases permitting preemption cases to go forward, held that poor people have the same right to bring preemption challenges as businesses, and let the case proceed.  All other Circuits to consider whether preemption is available in these circumstances were in agreement.