The Supreme Court Opens for Business

September 29, 2011
Guest Post

By Arthur Bryant, Executive Director, Public Justice. This post is cross-posted at Public Justice’s “Access To Justice Update.”

The U.S. Supreme Court starts its new term the first Monday of every October – this year, October 3.  That’s when the Court opens for business. Sadly, a growing number of people believe that is who the Court is now open for.

On December 27, 2010, The New York Times published an editorial “Temple of Justice,” that said the Supreme Court’s rulings “tend to deny rather than promote access to justice.” At almost the same time, the Constitutional Accountability Center released a study, Open for Business: Tracking the Chamber of Commerce’s Supreme Court Success Rate from the Burger Court through the Rehnquist Court and into the Roberts Court. It found a dramatic increase in the Chamber’s win percentage and the Court’s ideological divide under Justice Roberts. Shortly after that, the Alliance for Justice published Unprecedented Injustice: The Political Agenda of the Roberts Court, starting with a section on “Shielding Corporations from Liability.”  The Alliance now refers to the Supreme Court as “The Corporate Court.”

The Court’s rulings last term heavily reinforced this perception.  To pick just (the worst?) three:

  • In AT&T Mobility v. Concepcion, the Court struck down 5-to-4 a California rule of law that stopped corporations from banning class actions against them for cheating large numbers of people out of individually small amounts of money. Isn’t that when class actions are most needed?

  • In Wal-Mart v. Dukes, the Court held 5-to-4 that a national class action could not be brought against the nation’s largest retailer for sex discrimination against its current and former women employees. If the company is discriminating – and evidence shows women workers there did far worse in pay and promotions than men – how is it to be held accountable?

  • In Pliva, Inc., v. Mensing, the same five members of the Court ruled that generic drug manufacturers cannot be sued for failing to warn of their drugs’ dangers, although name-brand manufacturers can be – even name-brand manufacturers of the same drug with the identical warning label. What sense does that make? Congress did not say it; the statue says nothing about this. Who does it help, except for the generic drug manufacturers?

These decisions were the latest, most disturbing examples of five members of the Court changing the law to limit or eliminate the ability of customers, workers, and investors to hold corporations accountable in court. Seven years ago, Public Justice launched the Access to Justice Campaign to expose and battle the frontal assault taking place on Americans’ right to a day in court. Since that time, we have won enormous victories, including in the U.S. Supreme Court. But our work is more essential than ever now.  

Already this term, the Court has agreed to decide whether railroad workers killed or injured by asbestos are barred from suing the railroad and parts manufacturers who caused their injuries. Other corporations’ pleas for immunity from liability for wrongdoing are now pending before the Court. With Congress deadlocked on so many things, legislation overturning Supreme Court decisions is unlikely. In the meantime, there are three things, in particular, we must do.

First, we must make sure that the Court and all Americans understand the extraordinary dangers and implications of corporations’ efforts to close the courthouse doors to people they cheat, discriminate against, injure or kill.

Second, we must battle corporations’ attempts to build on and overstate what the Court has already done – countering their bids for more immunity before the Court and proving to the lower courts that, contrary to the corporations’ claims, the Court has not yet allowed them to wipe out class actions, bar access to the courts, and violate the law with impunity.

Third, we must keep fighting.  That’s the only way to win. And what we’re fighting for are the principles on which our nation is based. The Supreme Court exists to provide what is inscribed above its doors: “Equal Justice Under Law.” That’s why it is open for business.

Let this be the term where the Court reaffirms that that all of America’s courts – including the Supreme Court – are open for people, too.