Senate at a new low

Yesterday, for the first time, a circuit court nominee reported to the floor with bipartisan support has been successfully filibustered, breaking long-standing tradition and further shattering public confidence in the ability of the Senate to function responsibly within our democratic system.  This partisan action marks a new low in the politics of obstruction, hindering the process of putting judges in empty federal court seats across the country.

Oklahoma Judge Robert Bacharach was nominated for a seat on the U.S. Court of Appeals for the Tenth Circuit. He was a noncontroversial nominee, rated unanimously "well qualified" by the American Bar Association, supported by his conservative home state senators, and reported out of the Senate Judiciary Committee with overwhelming bipartisan support.

However, earlier this summer, Senate Minority Leader Mitch McConnell (R-NV) invoked the so-called “Thurmond Rule,” to delay judicial confirmations before the election.  Efforts to block Bacharach were in full force Monday night. Bacharach was four votes shy of the sixty needed for cloture. Tom Coburn (R-OK) and James Inhofe (R-OK) turned their backs on Bacharach by refusing to vote in favor of the nomination and instead voted “present.” Republican Senators Scott Brown (MA), Olympia Snowe (ME), and Susan Collins (ME) voted with Democrats to end the filibuster, while Senator Orrin Hatch (R-UT) also voted present.

The blocking of Bacharach indicates that the Republican leadership has indeed drawn the line in the sand: No more circuit court judge confirmations during an election year. It also sends the message that partisan political games are more important than justice for ordinary Americans. Now people living in the Tenth Circuit, which covers the states of Oklahoma, Kansas, Wyoming, Utah, Colorado, and New Mexico, will continue to suffer a vacancy on the appellate court that hears their cases.

What does this mean for other states? Three other circuit court nominees pending on the Senate floor, and four in committee, will not be confirmed this year simply because partisan forces have decided to keep the Senate from doing its job while they wait and see what happens in November. 

This compounds an overall and ongoing vacancy crisis in the federal courts. Due to a pattern of Republican obstructionism over the course of the Obama administration, only 154 of President Obama’s circuit and district nominees have been confirmed, while President Bush had seen 197 confirmations at this point in his first term. President Obama could be the first President in at least 30 years to complete his first term with more judicial vacancies than when he took office and Americans with cases in our federal courts will have to wait longer and longer to seek justice.

Cloture Filed on 10th Circuit Nominee Robert Bacharach

Judge Bacharach
This afternoon Majority Leader Reid (D-NV) filed cloture on Judge Robert E. Bacharach’s nomination to the Tenth Circuit Court of Appeals.  A vote is expected next Monday at 5:30pm.  Bacharach is a noncontroversial nominee, rated unanimously “well qualified” by the ABA, who was reported out of the Judiciary Committee with bipartisan support.  Ultraconservative Senators Tom Coburn (R-OK) and James Inhofe (R-OK) both strongly back his nomination.  Indeed, when recently asked about the efforts to block a vote on Judge Bacharach, Senator Coburn told The Oklahoman on June 12, 2012 that: “I think it’s stupid.”  Senator Inhofe, in introducing Bacharach at his committee hearing, said that: “I believe that Judge Bacharach would continue the strong service Oklahomans have provided the Tenth Circuit.”

The question now is whether Senate Republicans will vote in support of an unquestionably qualified, consensus nominee. 

Earlier this summer, Senate Minority Leader Mitch McConnell (R-NV) invoked the so-called “Thurmond Rule”, an informal call to arms for Republican senators to block judicial nominees before the election so as to keep seats vacant for a potential future Republican president to fill.  If Republicans were to block Bacharach, however, it would be first time a circuit court nominee reported to the floor with bipartisan support has been successfully filibustered.

Blocking the confirmation of Judge Bacharach would add yet another obstructionist precedent to the growing pile of similarly inglorious precedents four years in the making.  The net effect of this obstructionism has been to keep dozens of judgeships unnecessarily vacant.  These efforts have gone far beyond simple political retribution.  Indeed, by July 26, 2004, 197 of President Bush’s circuit and district nominees had been confirmed.  By July 26 of this year, only 154 of President Obama’s circuit and district nominees have been confirmed, more than 40 confirmations fewer than at this point in President Bush’s first term.  Due to Republican obstruction, President Obama will be the first President in at least 30 years to complete his first term with more judicial vacancies than when he took office.

Simply put, it’s time for Senate Republicans to stop playing politics with the federal judiciary and start confirming nominees who everyone agrees would be great judges and who are desperately needed in courtrooms around the country. Click here to tell your Senators to end the filibuster of Judge Bacharach.
For more information on vacancies and pending nominees visit AFJ's Judicial Selection Project.

Eighth Circuit Judge Michael Melloy to Take Senior Status in January

Judge Melloy
According to the Administrative Office of the U.S. Courts, Judge Michael Melloy of the United States Court of Appeals for the Eighth Circuit will take Senior Status on January 30, 2013.  President George W. Bush appointed Judge Melloy to an Iowa-based seat on the court in 2002.  The vacancy presents President Obama with his first opportunity to nominate someone to the Eighth Circuit, which has jurisdiction over seven states: Minnesota, North Dakota, South Dakota, Nebraska, Iowa, Missouri, and Arkansas.  The court, which has 11 active judgeships, is the most Republican-dominated circuit in the country, with 9 Republican appointees and 2 Democratic appointees.  It also has the worst gender balance of any circuit, as its sole female Judge, Diana Murphy, is the first and only woman ever to sit on the court.
For more information on vacancies and pending nominees visit AFJ's Judicial Selection Project.     

Cloture withdrawn, Judge Confirmed to the District of New Jersey

Judge Shipp
This evening the Senate confirmed Judge Michael Shipp to the District of New Jersey after Judiciary Committee Chairman Patrick Leahy (D-VT) asked for, and received unanimous consent to withdraw the cloture motion on Judge Shipp’s nomination and to proceed directly to a confirmation vote.  Republicans forced Majority Leader Reid (D-NV) to file cloture on Judge Shipp’s nomination last week because of a dispute on an unrelated bill.  This is not the first time that Senator Reid has been forced to file cloture on long-pending, exceptionally qualified nominees.  In March he filed cloture on 17 nominees, after Republicans slow-walked confirmations for much of the early part of the year.

Now that Judge Shipp has been confirmed, there are 20 judicial nominees awaiting final confirmation votes, including 10 who would fill “judicial emergency” seats.  The Senate should move quickly to confirm the pending nominees who are only waiting for their final votes -- almost all of whom have strong bipartisan support -- before the upcoming August recess.

Gallup Poll Reveals Growing Disapproval of Supreme Court

A Gallup poll conducted two weeks after the end of the Supreme Court’s 2011-2012 term shows that overall opinions of the Court remain near all-time historic lows.  While immediate reactions to the Court’s ruling on the Arizona immigration law and on health care reform track in accordance with the highly political nature of those cases, approval of the Court continues on its downward spiral.
AFJ's earlier poll also reflected this trend. It found public opinion of the Court at an all-time low, with record numbers of Americans viewing the Court as making decisions based on their political biases rather than the merits of the cases before them. The Gallup poll reaches largely the same conclusions, finding that overall public disapproval of the Supreme Court has dropped by five percent between September 2011 and July 2012.
The Gallup poll revealed that Democrats and Republicans have reacted differently to the Court’s end-of-term rulings, with approval of the Court between September 2011 and July 2012 dropping 21 percent among Republicans but rising 22 percent among Democrats. The Gallup pollsters have speculated that the divergence between Republic and Democratic views of the Court likely reflects immediate reactions to  the closely watched ruling on health care reform.

However, as AFJ has noted, the ruling, while a victory for supporters of President Obama’s signature health reform law, also contained potential dangers in the Court’s narrow view of the Commerce Clause, the foundation for a host of civil rights, environmental, consumer protection, and worker’s rights laws.

Cases involving affirmative action in college admission policies and consumer rights are already on the Court’s docket for the fall; cases involving voting rights and marriage equality are certain to come before the Court in the near future. Alliance for Justice will continue to monitor the Court—and the public attitudes toward it—as the implications of the Court’s ruling in the health care case, and others, play out in the coming terms.

Judiciary Committee still processing nominees; Senate still moving too slowly

Judge Kevin McNulty
(District of New Jersey)
On Monday, the Senate confirmed Kevin McNulty to the United States District Court for the District of New Jersey by a vote of 91-3 (with Senators Lee, DeMint, and Vitter voting as a continuing protest of President Obama’s recess appointments of executive nominees in January). Despite facing no substantive opposition, Judge McNulty waited for over seven months for his confirmation vote.  

On Thursday, the Senate Judiciary Committee reported out four district court nominees (on voice votes, with Senator Lee as the only opposition):
  • Frank Paul Geraci, Jr., nominee to the Western District of New York
  • Fernando M. Olguin, nominee to the Central District of California
  • Malachy Edward Mannion and Matthew W. Brann, nominees to the Middle District of Pennsylvania.  
There are now 21 nominees awaiting final confirmation votes on the Senate floor, 10 of whom would fill seats that have been declared to be judicial emergencies by the nonpartisan Administrative Office of the U.S. Courts.

The number of nominees awaiting confirmation votes has grown recently, as the Senate has only confirmed 4 judicial nominees in the last month. With approximately 3 new vacancies arising each month so far this year, the Senate’s current confirmation pace is simply not fast enough to significantly reduce the number of existing vacancies in our courts.

There are currently 77 vacancies across the country, and another 13 seats will soon be vacant. Given that the president began his term in office with 55 vacancies, the Senate could go a long way toward getting back to that point by moving quickly to confirm the pending nominees who are only waiting for their final votes -- almost all of whom have strong bipartisan support -- before the upcoming August recess.

There is more than one way to end DOMA

Cert petitions have been submitted to the Supreme Court in three separate cases that call into question the constitutionality of the Defense of Marriage Act (DOMA), a law that denies economic and other benefits to same-sex couples even in states where same-sex marriage is legal.  If the Court decides to hear one or more of them, its ruling could both determine the constitutionality of DOMA and could set a standard for how courts evaluate laws that discriminate against people on the basis of sexual orientation.

Several federal courts have also found DOMA to be unconstitutional, including the U.S. District Court for the Northern District of California and the U.S. Court of Appeals for the First Circuit.  Each of these courts has applied a different level of review to determine whether the law can stand. 

The California decision applied the strictest “heightened scrutiny” test to the statute.  Heightened scrutiny is applied to laws impacting a protected class of people; presuming such laws may have a discriminatory effect, it only allows such laws to stand when they are found to be narrowly tailored in the least restrictive manner to serve a compelling governmental interest.  By applying this test, the court held that sexual orientation constitutes a protected class deserving of special protection. 

The First Circuit applied what the three-judge panel called “closer than usual” review of the law’s discriminatory effects, presuming that there could be some discrimination inherent in the law but balancing that against the interest of the government in passing it. The First Circuit ruling on DOMA’s constitutionality is – so far – the only one by a federal appeals court. 

In New York, Edie Windsor won her legal challenge to the discriminatory statute when she sought to recover hundreds of thousands of dollars in inheritance taxes that she would not have had to pay if the federal government recognized her rights as a spouse. Because Section 3 of DOMA defines marriage as being between one man and one woman, Windsor’s inheritance was subject to estate taxes not levied on heterosexual couples.

In finding DOMA unconstitutional under a rational basis review, the Southern District of New York indicated that no rational reason exists for a law denying same-sex couples the right to marry.  Rather than finding LGBTQ persons are a class in need of special protection by the courts, Windsor holds that DOMA defies common sense and must, therefore, be struck down.

The ACLU, which represented Windsor in court, has petitioned the Supreme Court to bypass the appeal made to the Second Circuit and decide the case themselves.

Windsor is the only case where DOMA failed under the rational basis test.  Rational basis review generally allows a law to stand if there is any possible, conceivable reason that a legislature might have thought a rational reason exists to pass a law. It is a very broad standard; when applied to statutes, they almost always pass scrutiny by the Court. 

The Supreme Court has yet to decide which form of scrutiny applies to discrimination based on sexual orientation.   That the Court will hear at least one of these cases seems almost inevitable.  In addition to the fate of DOMA itself, the Supreme Court’s choice of which case to take could establish a standard for review of laws impacting sexual orientation.

Another challenge on the use of drones

The U.S. policy of using armed drones to kill American citizens suspected of terrorism is again being challenged in federal district court.

The lawsuit, Al-Aulaqi v. Panetta, was filed in the U.S. District Court for the District of Columbia this week on behalf of three U.S. citizens who were killed by armed drone attacks in Yemen. Two civil rights groups, the American Civil Liberties Union and the Center for Constitutional Rights, joined the suit and are seeking monetary damages from four top government officials for violating the Fifth Amendment right to due process, the Fourth Amendment right to not be subjected to unreasonable seizures, and the Constitution’s bill of attainder clause, which requires a trial before punishment.

Two years ago, in the same court, the father of a suspected terrorist filed a similar suit, Al-Aulaqi v. Obama, to prevent the use of a drone to kill his son, who was on the government’s “kill or capture list.” The district court dismissed the case on the grounds that the father lacked standing to bring the claim -- as his son was still alive -- and that the issues were better left to Congress under the political question doctrine.

Less than a year later, the man’s son was killed in a drone strike, along with his 16-year-old grandson, who was not on the "kill or capture list."

Nasser al-Aulaki, who filed the suit, said that "his son made his own decisions and knew he was a target, but he said that did not give the government the right to kill his 16-year-old grandson."

It has been reported that armed drones are used in Iraq, Afghanistan, Pakistan, Yemen, Somalia, Sudan, and the Philippines. The American drone program has been criticized from many quarters for:
  • failing to take steps to prevent killing of innocent bystanders
  • relying on highly secretive and tenuous information to identify the targets
  • not receiving the consent of foreign governments to carry out the attacks
  • violating American law by not arresting and trying the suspects in court
While the American government counters that the use of drones narrows the collateral damage of going to war and sending American forces into the most dangerous corners of the world, others reply that people are being killed before being proven guilty and that civilians are all-too-often accidentally killed.

This case will undoubtedly have profound implications for civil rights and for military policy, and is certain to be one of the most-watched cases in federal court.

New Report Questions Republican Support for Medical Malpractice Reform

The U.S. House of Representatives voted yesterday to repeal the Patient Protection & Affordable Care Act (ACA). In the 31st chapter of the “Repeal & Replace” saga, there is still no leadership-backed proposal for “replacing” Obamacare.  But while the House majority offers no clear alternative to the Massachusetts-style ACA that Congress passed in 2010, the Republican-controlled House has acted on medical liability reform.

For instance, the misleadingly named “Help, Efficient, Accessible, Low Cost, Timely, Health Care (HEALTH) Act of 2011” (or HR 5, one of the first bills considered by the current Congress) capped awards for medical malpractice at $250,000 while establishing a 90-day statute of limitations for filing medical malpractice suits. Among the bill’s many gems is a ban on claiming punitive damages in an initial malpractice complaint.

Bills such as HR 5 rely on the assumption that medical malpractice lawsuits – by way of litigation costs and compensatory and punitive awards – are single-handedly increasing the costs of insurance and medical care.

A recent report from Public Citizen debunks that premise, noting that there were fewer medical malpractice payments made in 2011 than in any year since the government started recording such data. Payments this past year were also smaller on average than any year since 1995 and at their lowest in total since 1998. On average, 53% of medical malpractice payments were based on future medical costs.

But supporters of HR 5 are not interested in the future medical costs borne by victims of medical malpractice. All they claim to care about is the impact this type of litigation has on rising overall health care costs. And according to the new report, that impact is nominal at best.

Medical malpractice payments in 2011 were at 0.12% of total health care costs – an all-time low. Similarly, medical liability insurance premiums comprised 0.36% of overall health care costs in 2010, the last year for which data is available.

What the findings of this report show is that, while there are still hurdles to universal access to affordable medical care after the ACA, reforming medical malpractice litigation through HR 5 and similar legislation is not in the patients’ best interest.

Furthermore, the Republican argument that medical malpractice lawsuits are driving up health care costs simply doesn't hold water. Moving forward, Congress should consider legislation that improves access to health care without punishing patients or victims of preventable medical errors. There is simply no reason to excuse medical malpractice so long as it remains the sixth leading cause of death in the United States.

City of Pittsburgh to US Senate: Fill Judicial Vacancies

Access to justice is being stifled throughout the country, as more than eight percent of all federal judgeships are currently vacant while partisan gamesmanship in the U.S. Senate holds up the confirmation of judicial nominees.

In Pittsburgh, the City Council is responding to this crisis by calling on Pennsylvania’s senators to do all they can to fill the state’s federal judicial vacancies by the end of the year:
NOW, THEREFORE, BE IT RESOLVED that the City Council of Pittsburgh supports a strong judiciary, and calls on Pennsylvania Senators Bob Casey and Pat Toomey to recommend qualified nominees to the White House and work with their colleagues to fill the eight federal judicial vacancies in the state of Pennsylvania before the end of the year.
Pennsylvania is far from the only state suffering from the judicial vacancy crisis.  There are 91 current and upcoming vacancies nationwide.  Thirty-one of these are judicial emergencies. Women and minorities are largely affected by the stall on confirmation; eighteen of the 34 pending nominees are women or minorities.

A new fact sheet from Alliance for Justice calls on the Senate to stop playing partisan games and do its job to address this crisis in the weeks remaining before Congress takes its August recess, noting that:
  • The 15 nominees pending on the Senate floor could receive confirmation votes immediately, but Senate Minority Leader Mitch McConnell (R-KY) has invoked the so-called “Thurmond rule” in order to attempt to halt the nominations process in an election year;
  • Republican leaders are obstructing qualified, consensus nominees like William Kayatta and Robert Bacharach to seats on the First and Tenth Circuit Courts, respectively, although each has the full support of their Republican home state senators;
  • Years of obstructionist tactics  have left President Obama trailing President Bush 152 to 197 in total district and circuit court confirmations at this point in their respective presidencies.
Click here to download the fact sheet as a PDF.

With a growing consensus for action on nominees from voices including the American Bar Association, Chief Justice John Roberts, and a growing number of federal and circuit court judges, the White House and Senate should move swiftly to fill existing vacancies.  Our justice system can’t function effectively without enough judges on the bench, and it shouldn’t be held hostage by political games.  It is not hyperbole to say that justice hangs in the balance.

“Mayor Franks” At It Again

by Greta Foster

This morning, the House Committee on the Judiciary held a markup on HR 3803, the District of Columbia Pain-Capable Unborn Child Protection Act.

Based on the conclusion that an “unborn child is capable of experiencing pain at least by 20 weeks after fertilization,” the bill aims to restore the abortion limitations previously repealed by DC City Council in 2004. The bill would not only prohibit abortions for women 20 weeks or greater in term, unless to save the life of the woman, but it also comes with a penalty of up to two years in prison for violations.

The bill was introduced by Rep. Trent Franks (R-AZ), who was reprimanded by congressional members after he denied a request made by Del. Eleanor Holmes Norton (D-DC) to speak at the hearing. Although nearly 50 DC residents protested Franks’ attempt to overstep DC's home rule, Rep. Franks believes that he knows what’s best for residents in the District of Columbia. Rep. Franks should concentrate on representing the interests of the second district of Arizona, not the District of Columbia.

Digging Deeper Into Ginsburg's Obamacare Opinion

Legal experts across the ideological spectrum have speculated on the dangers lurking in Chief Justice John Roberts' narrow opinion in upholding the Patient Protection and Affordable Care Act. While some disagree on the decision’s potential impact in future cases, it certainly suggests a basis for limiting Congress’ legislative authority. Justice Ruth Bader Ginsburg, in her strong defense of the constitutionality of the ACA under the Constitution's commerce clause, points out the dangers of Roberts’ approach.

Justice Ginsburg makes two important arguments for upholding the ACA under the commerce clause. First, legal precedent demands that the Court examine federal laws as practical solutions to national problems. In fact, Ginsburg’s concurrence cites Justice Anthony M. Kennedy – who voted against the ACA’s constitutionality – as writing that interstate commerce regulation should be viewed as a “practical” matter.

What this means is that the Court should have considered the ACA in light of the unique circumstances surrounding the nation’s health care crisis (rising cost of insurance and care, increasing number of uninsured Americans, etc.).

The opinion describes multiple states’ attempts to reform the health care industry. Ginsburg notes that most attempts at reform sought to guarantee coverage and access to insurance but failed because individuals would refuse to pay for insurance until they needed it the most, thus driving up insurance costs. Massachusetts, the first state to require that all citizens purchase health insurance, demonstrated that an individual mandate to buy health insurance could control those costs while providing near-universal coverage. Thus, members of Congress knew that any attempt at reform that preserved a major role for private insurers would need a requirement that all Americans purchase insurance.

Viewed as a “practical” matter, the individual mandate was a permissible and necessary exercise of Congress’ power to regulate commerce.

Second, the opinion written by Roberts (and expressed separately by Justices Kennedy, Scalia, Thomas, and Alito) places unreasonable restrictions on the commerce clause. Justice Ginsburg observes that the Supreme Court’s prior cases on the commerce clause expanded Congress’ powers in regulating activities that have an impact on interstate commerce. The Roberts opinion -- while admitting that activities that substantially affect interstate commerce are subject to the commerce clause -- created unfounded distinctions to limit those powers, arguing that the individual mandate sought to regulate economic inactivity, rather than activity in which people already engage. In reality, 60% of uninsured Americans will seek medical care in any given year, while 90% certainly will within five years, which indicates that even those who choose not to purchase insurance still are participants in the health-care market.

The Constitution, Ginsburg says, clearly affords Congress the authority to regulate a choice that has such a tangible impact on interstate commerce.

The commerce clause is the basis for many important pieces of legislation, such as the Civil Rights Act of 1964. If an uninsured citizen’s refusal to purchase medical insurance, leading to his later medical costs being shifted to others -- what Roberts and the dissent call “inactivity”-- may not be regulated under the commerce clause, what’s next? Will the Court decide that refusing to serve racial minorities at a restaurant or a hotel is also “inactivity”? What about refusing to sell contraceptives? Refusing to install wheelchair ramps? Or deciding not to participate in air-quality controls?

The Roberts Court may have made it a lot easier for opponents of these laws, and many others based on Congress’ power to regulate interstate commerce, to challenge them in court. If and when they do, legal experts and the justices themselves will certainly look to the opinions of Roberts, Kennedy, Scalia, Thomas, and Alito in Affordable Care Act case to determine the limits of congressional authority under the commerce clause.

Justice at Stake: Judicial Confirmations Needed Before the August Recess

The nation is enduring a judicial vacancy crisis that prevents our courts from providing justice to all Americans.

Seventy-six federal judgeships—more than eight percent of all seats—are currently vacant. Thirty-one of these vacancies are judicial emergencies.

President Obama inherited 55 vacancies when he was sworn into office. Without swift Senate action on pending nominees, he will become the first president in at least 30 years to finish his first term with more vacancies than he inherited, excluding newly created seats.

Senate Republicans are perpetuating this crisis by blocking votes on unquestionably qualified, consensus nominees, hoping to hold seats open in case a Republican is elected president.

Republican Leader Mitch McConnell (left) invoked
the so-called "Thurmond rule."
Though there are 15 nominees pending on the Senate floor who could be confirmed immediately, Senate Minority Leader Mitch McConnell (R-KY) recently invoked the Thurmond rule to delay judicial confirmations before the election, especially for circuit court nominations. Republican senators have essentially been told to prioritize political bickering over access to justice for millions of Americans.

Republican leaders are obstructing unquestionably qualified, consensus nominees such as:
  • William Kayatta, a Maine nominee who is supported by Maine's Republican Senators Snowe and Collins for a seat on the First Circuit Court of Appeals; and
  • Robert Bacharach, an Oklahoma nominee who is supported by Oklahoma's Republican Senators Coburn and Inhofe for a seat on the Tenth Circuit Court of Appeals. 
These nominees would normally be confirmed unanimously.

Republicans are raising obstructionist tactics to a new level, as President Obama already trails President George W. Bush 152 to 197 in total district and circuit court confirmations at this point in their respective presidencies. Confirming all pending nominees before the August recess will only marginally reduce the comparative numbers.

This obstruction is unacceptable, and senators of both parties who care about promoting good government should end it by forcing votes on every nominee currently pending on the Senate floor before the August recess. 

There is a growing consensus for action on nominees. The American Bar Association, Chief Justice John Roberts, and a growing number of federal district and circuit court judges have all urged the Senate to quickly fill existing vacancies. They know that our justice system can’t function effectively without enough judges on the bench, and it shouldn’t be held hostage by political games.

Senators are in Washington for four weeks before again leaving town. It is time for them to confirm nominees and provide their constituents with the functioning courts upon which our democracy depends.
    To download this information as a PDF, click here.

    For more on the judicial vacancy crisis, visit AFJ's Judicial Selection Project.

    One Year Later: The Consequences of Wal-Mart v. Dukes

    Class-action lawsuits are a powerful tool for employees and consumers to fight for their rights against major corporations. However, thanks to the Supreme Court’s 2011 decision in Wal-Mart v. Dukes, which raised the threshold for the certification of class-action lawsuits, perhaps the correct way to have begun this post would be “Class-action lawsuits were a powerful tool.”

    The tide against class-action lawsuits was never more resounding than in Wal-Mart. One year ago, the Supreme Court reversed the lower court’s grant of class certification, after female employees of Wal-Mart tried to bring a class-action lawsuit under Title VII of the Civil Rights Act of 1964 against the mega-corporation for consistently promoting and paying higher salaries to male employees. The employees presented facts showing that 70 percent of Wal-Mart’s hourly jobs are filled by women, while only a third of management positions are. Additionally, women are paid less than their male counterparts from day one and over the course of their employment (read our study here). The Court’s decision not only affected the rights of the one million current and former female Wal-Mart employees whose interests were at stake in the suit, but radically re-wrote the federal rules on class certification with implications for millions of other plaintiffs or would-be plaintiffs.

    In Wal-Mart, the Court changed the commonality standard from an “easily satisfied” bar to one requiring that common issues “predominate.” The Court held that a discretionary management system that has produced disparity does not satisfy the new stricter standard. The new commonality standard means that to move forward as a class-action lawsuit, the claims must
    depend upon a common contention of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. . . . What matters to class certification [is] the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.
    Now not only must plaintiffs be affected by a decision made by high-level corporate executives (rather than by lower management), but the higher-ups’ decision-making must also be conscious and intentional. Needless to say, the Wal-Mart case has far-ranging implications for fighting sex discrimination in the workplace and for class-action litigation across the board.

    There are many reasons why class-action litigation is an important vehicle for the vindication of civil rights. In cases involving systemic discrimination, each plaintiff’s case becomes stronger when seen in the aggregate. Furthermore, a wide-scale lawsuit can improve the lot for more employees (or consumers, as the case may be) and so is a more efficient means of delivering more justice than individual suits. Finally, a class action can affect a corporation’s bottom line in a way that individual litigation is unlikely to, and thus class actions are more likely to inspire improvements in corporate behavior.

    In the wake of Wal-Mart, several circuits have prevented class-action lawsuits from moving forward. The Fifth and Second Circuits have followed language in Wal-Mart rejecting class-action lawsuits in which plaintiffs claim separate, individual damages, while the Ninth and Eighth Circuits have focused on Wal-Mart’s heightened commonality requirement.

    In a troubling decision, Bennett v. Nucor Corporation, the Eighth Circuit affirmed a lower court’s dismissal of a suit, finding that the plaintiff employees failed to meet the commonality requirement under Wal-Mart. In that case, African-American employees at an Arkansas steel mill attempted to bring a class-action lawsuit for racial discrimination against their employer under § 1981 and Title VII. The court found that the employees did not speak for the entire plant because they only worked in one of five departments of the plant, where Confederate flag-style “do-rags” were sold in the company store, actual Confederate flags and nooses were publicly displayed, and racial comments were communicated over the radio, in e-mails, and scrawled on the equipment and in bathrooms.

    Some courts, including the Third, Fourth, Sixth and Seventh Circuits, have distinguished Wal-Mart in cases against the De Beers and Hearst corporations, among others. In one of the most publicized post-Wal-Mart decisions, McReynolds v. Merrill Lynch, decided in February of this year, Judge Posner of the Seventh Circuit wrote for a three-judge panel that African-American financial advisors for Merrill Lynch could bring a class-action lawsuit under Title VII and § 1981 because the issue of disparate impact on African-American employees was appropriate for class-wide treatment.

    Posner came to this conclusion by distinguishing Wal-Mart. In Wal-Mart, corporate policies formally forbade sex discrimination and assigned hiring decisions to local managers. However, in Merrill Lynch, the Seventh Circuit took issue with two corporate policies: the “teaming” policy and the “account distribution” policy. The teaming policy permits brokers to form their own teams, which in turn are supposed to improve client services. The account distribution policy permits brokers to compete for the clients of departing brokers, based largely on past successes. This is an important distinction because Merrill Lynch’s policies were created in the higher echelons of management — not by local managers — and facilitated discrimination in that the African-American employees claimed that they were less likely to be selected for teams or distributed-accounts.

    Meanwhile, the Wal-Mart plaintiffs have re-filed as regional classes in California and Texas courts and intend to continue pursuing their important claims.

    Although some lower courts are allowing class actions to proceed under the Wal-Mart standard, the Corporate Court may not be done with rewriting the class certification rules. Just last week, the Court agreed to hear Comcast v. Behrend  during its next term, in order to address the question of what issues that bear on the merits of the case must be resolved at the class certification stage. If the Court reverses the Third Circuit’s plaintiff-friendly holding in this case, it will be erecting yet another barrier to justice for everyday Americans.

    One Year Later: The Consequences of Sorrell v. IMS Health Inc.

    The Supreme Court’s First Amendment jurisprudence has taken an alarming turn under Chief Justice John Roberts. Bowing to corporate interests, the ascendant conservative wing of the Court has warped First Amendment doctrine to thwart legislative efforts to reign in corporate activity that is harmful to the public interest. The 2010 Citizens United ruling is the best-known example of this trend, but an important, if lesser known, case is Sorrell v. IMS Health, Inc., decided one year ago this month.

    The Court in Sorrell held that a Vermont law prohibiting pharmaceutical marketers and data-mining companies from purchasing prescription records from pharmacies violated the First Amendment rights of the pharmacies. When the ruling was handed down last year, it provoked a sharp outcry. Observers in the medical community noted that the ruling would lead to both a loss of medical privacy and higher prescription drug prices. Going further, Senate Judiciary Committee Chairman Senator Patrick Leahy said that the Sorrell ruling was “just one more example of the Supreme Court using the First Amendment as a tool to bolster the rights of big business at the expense of individual Americans.”

    The impact of the Sorrell ruling in lower courts has reached far beyond Vermont, and has borne out Senator Leahy’s warning. For example, the Sorrell Court’s warped vision of the First Amendment was cited by the Northern District of Illinois in its ruling that the First Amendment protected a grocery store chain from liability for misappropriating Michael Jordan’s likeness in advertising without his consent. One industry in particular has welcomed the Sorrell ruling: tobacco manufacturers. Earlier this year, the federal trial court for the District of Massachusetts, relying heavily on Sorrell, struck down a Worcester city ordinance limiting tobacco advertising near schools and prohibiting the sale of “blunt wraps,” an especially carcinogenic tobacco product. In a similar vein, the Court of Appeals for the Sixth Circuit, relying partially on Sorrell, struck down part of a recent federal law that prohibited the use of certain colors and graphics in cigarette labeling and advertising. The Court upheld other portions of the law that had been challenged by the tobacco industry, including requirements that cigarette packaging contain large warning labels, but it is possible that the case may be on its way to the Supreme Court.

    The Court reached its conclusion in Sorrell by distorting its own tiered scrutiny framework. Long-standing precedent established that speech for purely private or profit-generating purposes — advertising, for example — should not receive the same level of judicial protection as some other forms of individual expression, such as political, artistic, or scientific speech. Rather than applying this precedent to the case before it, the Court decided instead to subject the Vermont data-mining restriction to the highest level of judicial scrutiny, usually reserved for only the most extreme cases of government censorship.

    This misapplication of First Amendment doctrine came as a shock to Court watchers, and sparked a sharp dissent from Justice Breyer. The dissent warned against the Court’s reversion to the jurisprudence of a century ago, when it employed dubious constitutional doctrine as a pretense for imposing its political and economic vision of libertarianism and lasseiz-faire capitalism on the nation. The most infamous example is the case after which that era was named: the Court’s 1905 ruling in Lochner v. New York. In Lochner, the Court struck down a New York state law guaranteeing basic worker protections as an infringement on the “liberty to contract” between the workers and their abusive corporate employers. The Sorrell dissenters referred to Locher repeatedly, urging the Court to avoid “repeating the mistakes of the past.”

    The First Amendment is a crucial cornerstone of our democratic freedoms, but it is not a license for corporate interests to trample on the rights of Americans. The warping of First Amendment jurisprudence by the conservatives on the Supreme Court in cases like Sorrell transforms the First Amendment from the safeguard of free democratic expression into a blank check for corporations to say, spend, and influence anyone or anything without accountability. The Court began to go down this road a century ago, before wisely turning back. It now appears that the conservatives on the Court are prepared to disregard the lessons of history and go down it again.