A widening disconnect

This past term generated a number of opinions by the Supreme Court that evidently reflect disregard as much for practical reality as for long-standing law. Although the pro-corporate bias of the Supreme Court is nothing new, the degree of that bias in the last term is striking. Such a legal development does not bode well for the future of those who seek to assert rights under labor, employment, civil rights, consumer, and other public-interest laws.

Not surprisingly, according to a recent USA Today poll, only around 40% of the public approves of how the Supreme Court is doing its job. Although the Supreme Court’s approval rating is better than the dismal approval rating for Congress, which hovers at around 10%, the public’s assessment of the Supreme Court does not bode well for the Court. As many have observed, the Supreme Court’s legal authority and political power depend on the extent to which the other branches of government and the general population view the Court and its decisions as legitimate. To understand why the Supreme Court is increasingly considered to be out of touch in this regard, one need look no further than the Court’s rulings in several high-profile employment, civil rights, and consumer cases in the last year.

In one employment law case, Vance v. Ball State University, the Supreme Court decided that only supervisors who actually can hire and fire the employees at issue are supervisors under the Title VII such that an employer could be held directly responsible for their conduct. In addition to casting aside the position of the Equal Employment Opportunity Commission, which Congress charged with interpreting and enforcing employment law, the Supreme Court’s opinion seems removed from how modern-day workplaces actually operate. For much of the corporate world, those who wield the authority of a supervisor in the workplace often do not have the power themselves to hire and fire directly, and those with that power – frequently in human resources or senior executive offices that may be offsite – do not regularly oversee the work of the employees they hire and fire.

In Shelby County v. Holder, the Supreme Court also disregarded decades of settled law and Congressional intent by curtailing the protections provided by the Voting Rights Act. That the Supreme Court would take such a narrow approach to applying a civil rights statute is troubling, standing alone, but all the more so given the escalating and reportedly race-based voter suppression efforts in recent election cycles. The Supreme Court’s decision here calls to mind the controversial opinion, Bush v. Gore, 531 U.S. 98 (2000), in which the 5-Justice majority invoked prior Supreme Court decisions that had enfranchised African-American voters in the 1960s to disenfranchise, in effect, African-American voters in 2000.

On the consumer front, the Supreme Court again took the side against the public interest. For example, in Mutual Pharmaceutical Co., Inc. v. Barlett, the Supreme Court ruled that Federal law, which often provides less meaningful recourse for consumers who have been harmed, preempts State law, which typically provides greater consumer protection and remedies, regarding claims related to generic drugs. In other words, people who have been hurt badly by generic drugs now can pursue claims only under Federal law, with its comparatively limited remedies. The author of the opinion, Justice Samuel Alito, so ruled while admitting that the plaintiff’s injury is “tragic and evokes deep sympathy. . . .” Such words from the Supreme Court, at best, ring hollow for those who have been – or will be – harmed by corporations or other institutional actors.