New Study Examines Corporate Echo Chamber at Supreme Court

Reuters has released a study showing that a relatively small number of elite attorneys have been involved in 43% of the cases the Supreme Court has taken over the past few years. The Reuters study, entitled The Echo Chamber, shows that most of these lawyers represent corporate interests, and their participation in a case makes it much more likely that the Court will agree to hear it.

A Reuters examination of nine years of cases shows that 66 of the 17,000 lawyers who petitioned the Supreme Court succeeded at getting their clients' appeals heard at a remarkable rate. Their appeals were at least six times more likely to be accepted by the court than were all others filed by private lawyers during that period.

...

The Reuters examination of the Supreme Court's docket, the most comprehensive ever, suggests that the justices essentially have added a new criterion to whether the court takes an appeal – one that goes beyond the merits of a case and extends to the merits of the lawyer who is bringing it.

The results: a decided advantage for corporate America, and a growing insularity at the court. Some legal experts contend that the reliance on a small cluster of specialists, most working on behalf of businesses, has turned the Supreme Court into an echo chamber – a place where an elite group of jurists embraces an elite group of lawyers who reinforce narrow views of how the law should be construed.

Of the 66 most successful lawyers, 51 worked for law firms that primarily represented corporate interests. In cases pitting the interests of customers, employees or other individuals against those of companies, a leading attorney was three times more likely to launch an appeal for business than for an individual, Reuters found.

In a SCOTUSBlog interview, study co-author Joan Biskupic discusses the outsized influence of corporate interests, including how it makes it harder for ordinary people to find the same caliber of high-powered lawyer as the corporate interests have available to them.

The domination of the docket by corporate interests has consequences for consumer and employee cases. Because corporate lawyers can't take those cases (based on firm-wide conflicts of interest), individuals are often left to a smaller, and collectively less successful, pool of lawyers.

In a nation founded upon Equal Justice Under Law, any indication that everyday Americans are systemically disadvantaged against powerful corporations at the Supreme Court must be taken seriously. Workers, consumers, and small business owners should certainly have the best legal representation possible.

Americans should also have the best judges possible, be it on the Supreme Court or any other court. Unfortunately, we have seen for some time now that a small but consistent majority of the Supreme Court is made up of conservative ideologues who are far more likely than not to rule in favor of corporate interests, even if they have to bend the law and ignore logic in order to do so.

That needs to change.

PFAW Foundation

Pregnant Workers' Rights at the Supreme Court

Today, the Supreme Court heard oral arguments in Peggy Young v. UPS, a case that will affect just how much protection is afforded by a federal law protecting pregnant workers from job discrimination. This is one of the cases discussed in PFAW Foundation's preview for the current Supreme Court term.

Young, a pregnant UPS driver, was told by her doctor that she shouldn't lift more than 20 pounds while she was pregnant. When the company refused her request for temporary light duty, she was forced to choose between her job and her pregnancy. She chose the latter, and she had to take unpaid leave for the rest of her pregnancy, which also meant a temporary loss of her health insurance.

UPS changed its policy a few weeks ago, and it now accommodates women in Young's position.  But the company claims its original policy was legal and not in violation of the 1978 Pregnancy Discrimination Act. The PDA says that job discrimination on the basis of pregnancy is a form of illegal sex discrimination (a point that should have been obvious, except the Supreme Court had interpreted Title VII otherwise a couple of years earlier).

But it does more than that: a second clause also specifically mandates the pregnant women "shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work."

Since UPS gave light duty to certain other workers who are similar in their ability or inability to work – ones with an on-the-job injury, the loss of their driving certification, or a permanent disability – Young sued, saying that her employer's treatment of her violated the PDA. But UPS says its policy was legal because it was "pregnancy-blind:" They claim they were treating Young the same way they'd have treated a non-pregnant employee whose injury doesn't fit any of the above conditions.

The Washington Post reports that at this morning's oral arguments, the Court "tread somewhat gingerly through an hour of technical arguments."

Justices Elena Kagan and Ruth Bader Ginsburg dominated the questioning of the company's lawyer, Caitlin J. Halligan.

Kagan said that when Congress passed the Pregnancy Discrimination Act of 1978, it meant to abolish the "stereotype" of women as marginal workers. She said the act forbids policies that put all pregnant women "on one side of the line," and instead forces employers to prove their actions are not discriminatory.

Justice Ginsburg also had a retort to one of Justice Scalia's criticisms of Young's arguments:

Justice Antonin Scalia [said that Young] seemed to be seeking special recognition under the 1978 act, akin to "most-favored nation" status.

Ginsburg later countered that the UPS policy seemed to convey "least-favored nation" status.

The question for the Court is what Congress intended when it passed the Pregnancy Discrimination Act. Did it truly intend for it to be so easy for companies like UPS to force women to choose between their job and their pregnancy? Or did Congress intend to protect pregnant workers who need their employers to make some reasonable temporary accommodation so they don't have to quit their jobs, lose their health insurance, and deprive their families of much-needed income?

PFAW Foundation

Supreme Court Review of ACA Case Muzzles the DC Circuit

The full D.C. Circuit's expected rejection of a transparently political attack on Affordable Care Act subsidies won't happen, due to the Supreme Court's decision last week to hear King v. Burwell, a Fourth Circuit case raising the same issue. This afternoon, the D.C. Circuit cancelled oral arguments scheduled for next month and put the case on hold pending the Supreme Court's decision in King.

ACA opponents launched similar cases in four different circuits, apparently hoping for a circuit split that would encourage the Roberts Court to take the case and (they hope) destroy Obamacare. It turns out they didn't need to try nearly that hard: At least four Justices on the Roberts Court are so eager to take the case that they didn't wait for a circuit split, or even for more than one circuit court to have a chance to address the issue. All that was needed was one case.

Assuming judges in other two circuits follow the D.C. Circuit's lead and put their own cases on hold, then the Court's so quickly taking the King case will have shut down the possibility of additional circuit courts exposing just how legally weak and transparently political the attack on the ACA subsidies is.

PFAW Foundation

Ominous Sign from the Roberts Court on ACA Subsidies

The Supreme Court announced today that it will consider the appeal of a case that was designed by activists to take a wrecking ball to the Affordable Care Act. Since only one circuit has made a final ruling on the issue (a unanimous decision rejecting the ACA opponents' legally weak, transparently political argument), there is no split among circuit courts requiring resolution. In addition, the issue has yet to be decided by three additional circuits that have similar cases pending. So today's action begs the question: Why does the Roberts Court want to hear this case, and why now?

PFAW Foundation's Supreme Court 2014-2015 Term Preview discussed the possibility that the Court would address this issue. As we wrote then:

Opponents of the Affordable Care Act strategically launched lawsuits in four different circuits challenging federal subsidies for millions of Americans buying health insurance on federally-run exchanges. The circuits were apparently selected to maximize the possibility of a circuit split, which in turn would maximize the likelihood of getting the case heard by the Roberts Court, which (they hope) would deliver a crippling blow to Obamacare. Decisions have been reached in two of the circuits, although one has since been vacated.

Section 1311 of the ACA says states should set up insurance exchanges, while Section 1321 of the Act says the federal government can set one up if a state doesn't. Subsidies are available for less well-off people getting health insurance through an exchange, based on the amount the person pays for the insurance s/he is enrolled in through an exchange "established by the state under [section] 1311" of the ACA. The law's opponents hope to have the Supreme Court rule that Congress intended for subsidies to be unavailable to Americans purchasing insurance through the federally-established exchanges that the law calls for in cases where the state does not step in. In other words, the argument is that Congress intended to undercut the financial viability of the law and thwart its central purpose.

A unanimous panel of the Fourth Circuit rejected this wild claim in King v. Burwell. However, two far right judges on the D.C. Circuit formed a majority in a three-judge panel ruling actually agreeing with the Obama care opponents in Halbig v. Burwell. Dissenting Judge Harry Edwards recognized the lawsuit as a "not-so-veiled attempt to gut the Patient Protection and Affordable Care Act," noting that "[i]t is inconceivable that Congress intended to give States the power to cause the ACA to crumble." The full D.C. Circuit subsequently vacated the ruling and will consider the issue en banc, and most observers expect a ruling more like the Fourth Circuit's.

But even if that happens, there are still lawsuits percolating in Indiana (Seventh Circuit) and Oklahoma (Tenth Circuit), so the hoped-for circuit split may yet occur. If it does, the Roberts Court is almost certain to consider the issue. While the case is transparently political and legally weak, that did not stop the conservative Justices when it came to the Commerce Clause challenge to the individual mandate.

The D.C. Circuit case remains pending: Oral arguments won't even be held until mid-December. The Tenth Circuit won't hear oral arguments until next year, and the Seventh Circuit case is still at the district court level. If the Court had waited for a possible circuit split to take the case, it would not have been heard until the term ending in July of 2016. But at least four Justices (the number it takes to grant a certiorari petition) are apparently unwilling to wait.

Their hunger to hear this case is ominous.

PFAW Foundation

Supreme Court Won't Hear Case on Crisis Pregnancy Centers

The Supreme Court this morning declined to consider the appeals of anti-abortion "crisis pregnancy centers" that challenged on free speech grounds a New York City law requiring them to disclose pertinent information to women.

Conservatives have a number of weapons in their arsenal designed to limit or eliminate women's ability to make their own reproductive choices. In a 2013 report entitled Chipping Away at Choice: Five Growing Threats to Women's Healthcare Access and Autonomy, our affiliate PFAW discussed a number of tactics used by the far right, including the role played by crisis pregnancy centers:

Crisis pregnancy centers (CPCs) are so-called "abortion alternative" sites run by private organizations that claim to provide support, information and medical care to pregnant women. CPCs use misleading tactics to draw women in: The centers advertise themselves as legitimate health centers, purposely distorting the truth to take advantage of vulnerable women. In reality, CPCs do not present women with a full range of reproductive health options; instead, they use false information about abortion to pressure women into continuing unwanted pregnancies.

In 2011, New York City passed a law to protect women from various methods of deception that lawmakers had seen occurring in the city, such as making women think that these centers were staffed by licensed medical professionals and provided access to or accurate information about all available options. Such practices include having women fill in medical history forms as they would at a medical office, or having staff wear medical scrubs. The City determined that such deceptive practices can have serious health and financial consequences for women. So the law requires pregnancy service centers to disclose if their services aren't provided or supervised by licensed medical professionals. This information must appear on their ads and within the facility itself. They must also make the same disclosure when asked to provide emergency contraception, abortion services, or prenatal care.

This disclosure law doesn't restrict the services the centers can offer, nor does it keep them from continuing to say the things they had been saying about contraception and abortion. They just have to disclose that their advice on critically important women's health issues is not coming from licensed medical professionals.

Several pregnancy centers sued, claiming this disclosure requirement compelled them to add unwanted messages to their speech and therefore violated their First Amendment rights. They also claimed that the law's definition of which types of facilities it covered was unconstitutional because it was too vague. A divided three-judge panel of the Second Circuit Court of Appeals disagreed and upheld this part of New York's law. (The panel unanimously struck down other two other provisions of the law on First Amendment grounds. These were not part of the appeal to the Supreme Court.)

The Supreme Court only accepts a few dozen cases a year. What happened here is typical: The final decision was made by a lower federal court, not the Supreme Court. That's why, just as with the Supreme Court, it matters a great deal who is nominated and confirmed to all of our nation's federal courts.

PFAW Foundation

John Oliver and Friends Stress the Importance of the Supreme Court

Justice Ginsburg was recently quoted as saying how much she enjoyed a recent bit on the Supreme Court done by comedian John Oliver. In case you missed it, Oliver hit upon a way to get people to listen to Supreme Court oral arguments even though they aren't televised. If you haven't seen it, it's quite ridiculous (and funny).

Why do something ridiculous in order to get people to pay attention to what the Supreme Court does? Oliver explains:

Because what happens at the Supreme Court is way too important not to pay attention to.

He's right about that. Whatever you may think about the comedy bit, you can't deny the importance of the Supreme Court. When targeted Americans are turned away from the polls due to strict voter ID laws, thank the Roberts Court. When women are denied access to affordable contraception because it offends their bosses, it's because of the Supreme Court. When you're forced to sign away your right to sue giant corporations when they violate your legal rights, thank the Roberts Court.

This term, the Supreme Court will be deciding cases affecting the federal government's power to eradicate housing discrimination, employers' ability to evade overtime and antidiscrimination laws, legislators' ability to reduce African Americans' voting power, and other critically important issues. They may also end up determining the constitutionality of right-wing efforts to shut down reproductive health clinics and sabotage the Affordable Care Act.

So yes, John Oliver did his comedy bit to get a laugh. But what he says remains true: "The Supreme Court is way too important not to pay attention to." Especially on Election Day, since the senators elected next week may vote on filling as many as four Supreme Court vacancies during their six-year terms. If you care about the Roberts Court's attack on voting rights, workers' rights, women's rights, consumers' rights – and if you're concerned about decisions like Citizens United – then take that into consideration when you vote.

PFAW

John Roberts, Calling Strikes and Strikes

In 2005, when John Roberts was seeking to persuade the Senate that he should be confirmed as Chief Justice, he famously (and misleadingly) likened Supreme Court Justices to baseball umpires, simply calling balls and strikes. To use his analogy, last week's ruling on voter ID in Texas showed just how far the umpire will go to rig the game.

Earlier this month, district court Judge Nelva Gonzales Ramos ruled that the voter ID law could not be enforced. Her careful consideration all of the evidence presented at trial led her to conclude that the Texas statute didn't simply have a racially discriminatory impact (as if that wasn't bad enough), but that state lawmakers had actually intended to make it harder to Latinos and African Americans to vote. She found that the law violated the 14th Amendment, the 15th Amendment, and the 24th Amendment (prohibiting poll taxes).

Not surprisingly, Texas wants to enforce the law during this year's election, while its appeal is pending. After all, if a law designed to obstruct people of color from voting isn't allowed to be enforced during the election, then what's the point? Less than a week after Judge Ramos issued her ruling, a three-judge panel of the Fifth Circuit granted Texas's request for a stay. The two George W. Bush-nominated judges on that panel wrote of the irreparable harm to Texas if its law were not enforced, with little concern about the irreparable harm to the law's targets if it were enforced.

So voting rights advocates asked the Supreme Court to vacate the appeals court's stay. But last week, over the dissent of at least three Justices, the Roberts Court denied that request, meaning that Texas can enforce the law during the current election. Although the Court did not provide its reasoning, they presumably believe that the state's interest in enforcing a law found to be intentionally discriminatory is greater than the interests of those targeted by the law.

What a terrible message the hard-right conservative judges are sending Latinos and African Americans: We just don't think your rights are important.

Using the baseball metaphor, even when the pitcher intentionally beans the batter, Umpire Roberts and his conservative colleagues will call it a strike. The umpire takes sides, and tough luck if you're on the wrong team.

But this isn't a baseball game, and Americans can do more than just boo from the stands: We can vote, and we can get our friends, family, coworkers, neighbors, and anyone else we know to vote. When we vote for Senate, we're picking the people who will vote on whether to confirm or block the next Supreme Court nominee. What better to way to prove to the Roberts Court that we all matter?

PFAW Foundation

The Roberts Court Gives North Carolinians a Reason to Vote

Late yesterday, the Roberts Court allowed North Carolina to re-impose obstacles to voting that particularly harm African Americans. Over the dissents of Justices Ginsburg and Sotomayor, and without explanation, the Justices issued a stay of the Fourth Circuit's order that the state not impose two particularly onerous rules (elimination of same-day registration and termination of out-of-precinct voting) until the conclusion of voters' lawsuits against the state currently pending in district court.

Justice Ginsburg pointed out in her dissent that these restrictions are a direct result of last year's Shelby County decision.

For decades, §5 of the Voting Rights Act of 1965, through its preclearance requirement, worked to safe guard long obstructed access to the ballot by African-American citizens. In Shelby County y. Holder, this Court found the Act's §4 coverage formula obsolete, a ruling that effectively nullified §5's preclearance requirement. Immediately after the Shelby County decision, North Carolina enacted omnibus House Bill 589, which imposed voter identification requirements, cut short early voting by a week, prohibited local election boards from keeping the polls open on the final Saturday afternoon before elections, eliminated same-day voter registration, terminated preregistration of 16- and 17-year olds in high schools, authorized any registered voter to challenge ballots cast early or on Election Day, and barred votes cast in the wrong precinct from being counted at all. These measures likely would not have survived federal preclearance. The Court of Appeals determined that at least two of the measures—elimination of same-day registration and termination of out-of-precinct voting—risked significantly reducing opportunities for black voters to exercise the franchise in violation of §2 of the Voting Rights Act. I would not displace that record-based judgment.  [internal citations removed]

As North Carolinians go the polls next month, some will be turned away because same-day registration will no longer be available. Others will have their entire ballots thrown away rather than counted because the voter went to the wrong precinct, silencing their voices on a key statewide race that is the same in every precinct: The one for U.S. Senate, where the winner will likely vote on several Supreme Court confirmations and hundreds of lower federal court judges during their six-year term.

So voters might want to consider Shelby County when they cast that vote for Senate. Do they want a far-right senator who would confirm more judges like the ideologues who have made it so much easier to disenfranchise African Americans?

Courts matter. And next month, North Carolinians will have a chance to shape our courts for years to come.

PFAW

Another Nail in the Coffin for Baker v. Nelson

A Supreme Court decision not to take an appeal of a lower court ruling is generally (and correctly) recognized as not being a ruling on the merits by the nation's highest court. But yesterday's determination not to hear several lower court decisions on marriage is arguably an exception. It can be seen as significantly weakening the argument made by anti-equality advocates that a decades-old Supreme Court one-sentence ruling in a case called Baker v. Nelson prevents lower courts from addressing the constitutionality of marriage bans.

Baker was a one-sentence Supreme Court ruling from 1972. A gay couple had challenged Minnesota's ban on same-sex couples getting married, and they had lost in the state supreme court. They appealed, and the Supreme Court responded with a one-sentence order, dismissing the case "for want of a substantial federal question." Although it was just one sentence and done without oral arguments or a written opinion, the summary dismissal was nonetheless a decision on the merits of the constitutional issue. As a result, most of the lower courts that have addressed the same issue four decades later have had to contend with this case.

Especially since the Windsor case striking down DOMA, most judges have agreed that while the Supreme Court itself has not overruled Baker, doctrinal developments since 1972 on Equal Protection generally – and on anti-gay discrimination in particular – have completely undermined it. Normally, the Justices tell lower courts that only the Supreme Court can overrule a Supreme Court precedent. Until that happens, lower courts should consider themselves bound by the precedent, even if the high court has undermined it over the years. But it has also made an exception if the precedent is, like Baker, a summary dismissal. In that case, courts do not have to follow it if subsequent doctrinal developments indicate it is no longer good law. That's what has allowed so many courts to get to the merits of the constitutional challenges to marriage bans.

Yesterday arguably represents another step in Baker's demise. Several landmark rulings over the past twenty years have recognized the fundamental equality, liberty, and dignity of lesbians and gays, making it hard to say that the Court still considers marriage equality lawsuits as not even presenting "a substantial federal question."

A more direct rebuke of Baker occurred when the Supreme Court issued an order accepting certiorari in the Proposition 8 case, which presented the exact same issue as the older case. Even though the Justices ultimately didn't address the merits, it is hard to claim with a straight face that the Supreme Court accepted cert and engaged in spirited oral arguments on an issue where there was no substantial federal question.

Yesterday's dismissal of the marriage cases represents another important stage in the long death of Baker. Three circuit courts concluded they could address the merits of the marriage equality arguments, Baker notwithstanding. Just by considering the issue, they rejected the holding of Baker. And certainly the conclusion they reached – that the United States Constitution prohibits states from banning same-sex couples from marrying – is a direct repudiation of the older case.

The Supreme Court takes it very seriously when a lower court simply disregards its precedents and says they are no longer good law. It's fine for a lower court to distinguish a case from an important previous precedent – that happens all the time. But to say the precedent can now be ignored would be a major challenge to the Supreme Court's authority … if the Justices thought for a minute that the old case was still good law.

But yesterday's decision sends a powerful message about Baker. A majority of Justices voted not to take the cases. If a majority considered Baker good law, we would not likely have seen an official Court action supported by a majority of the Justices choosing not to hear cases where lower courts declared themselves not bound by the precedent.

As additional circuit courts consider challenges to state marriage bans, they should not consider themselves bound by Baker v. Nelson.

PFAW Foundation

Supreme Court Action on Marriage Cases Is No Surprise

The Supreme Court's decision this morning to not hear appeals of any of the pending marriage equality appeals came as a surprise to some. But as PFAW Foundation's Supreme Court 2014-2015 Term Preview explained last month, most of the Justices may have strongly wanted to avoid taking these cases if at all possible:

Conservatives like Scalia and Thomas, who have in case after case shown their hostility to LGBT equality but may be unsure of how Kennedy would vote, might not be willing to risk a Supreme Court precedent that same-sex couples have a constitutional right to marry. From their perspective, if they can't change the outcome around the country, why make it worse by adding a jurisprudential nightmare from the nation's highest court that would taint American law for decades to come?

For Justices likely to recognize the constitutional right to marriage equality, the calculation might be different. They, too, not knowing Kennedy's position, might not want to risk a 5-4 ruling in the "wrong" direction on a major constitutional and societal issue. But even if they could be certain of being in the majority, they might find advantages to having the Court stay out. Justice Ginsburg, for instance, has suggested publicly that Roe v. Wade went "too far, too fast," provoking a backlash that could otherwise have been avoided. If the legal question of marriage equality is being decided rightly in all the circuit courts, some Justices might rather leave well enough alone. In fact, Justice Ginsburg told a group of law students in mid-September that without a circuit split, she saw "no urgency" for the Court to take up the issue now, although she added that she expects the Court to take it up "sooner or later."

It looks like the "sooner or later" will be when – or if – a circuit court ever rules against same-sex couples seeking to vindicate their right to marry.

The Term Preview also discussed some of the specific legal issues that an eventual Supreme Court ruling could address, beyond the black-or-white question of whether same-sex couples can marry. For now, absent a circuit court ruling upholding a marriage ban and a subsequent decision by the Supreme Court to hear the appeal, these questions will remain unresolved at the national level. But they are important questions:

Exactly which constitutional right do the bans violate? While numerous courts have ruled in favor of same-sex couples, they have been anything but unanimous in their reasoning: Some have suggested that the bans violate the Due Process Clause, because the longstanding, fundamental right to marry includes the right to marry someone of the same sex. Other judges indicate that the bans violate the Equal Protection Clause because they deny the right to marry based on the sex of the people seeking to get married. Still others suggest that the bans violate the Equal Protection Clause because they discriminate against gays and lesbians. While the different legal rationales would all have the same immediate result (marriage equality), they could create very different legal precedents and have very different impacts down the line as lower courts consider other types of discrimination, whether aimed at gays and lesbians, at transgender people, or at others.

A Supreme Court ruling might decide what level of scrutiny the Equal Protection Clause requires for laws that discriminate against gay people, an issue not squarely faced in previous cases. Most government classifications are subject to – and easily pass – "rational basis" scrutiny by the courts: The law is constitutional as long as it's rationally related to some legitimate government interest. (The Court has said that animus against gays and lesbians is not a legitimate purpose, which in the past has let it bypass the question as to whether anti-gay laws warrant more scrutiny from the courts.)

But a few types of laws trigger heightened Equal Protection scrutiny. Sex-based classifications are subject to intermediate scrutiny: They must be substantially related to an important government interest. Race-based classifications are generally subject to strict scrutiny, the highest level: They must be narrowly tailored to achieve a compelling government interest. If the Court rules that laws discriminating against lesbians and gays warrant some level of heightened scrutiny, that would have an enormous impact nationwide on all kinds of laws that discriminate against lesbians and gays, not just marriage bans.

The Court's discussion of this issue could also shed light on whether eliminating private discrimination against LGBT people is (in the Court's eyes) a compelling government interest. This could have an enormous impact as courts consider right wing challenges to anti-discrimination laws on the basis of the federal Religious Freedom Restoration Act or state-law analogs.

This last point is particularly important, given efforts by the far right to reframe anti-discrimination and women's health laws as attacks on religious liberty. As affiliate People For the American Way Senior Fellow Peter Montgomery wrote earlier today on Right Wing Watch:

[R]edefining "religious liberty" has become the central culture war issue and the primary legal and public relations strategy chosen by conservative evangelicals and their allies in the Catholic hierarchy to resist the advance of LGBT equality and restrict women's access to reproductive care.

This right-wing reframing effort might have been hurt by a strong Supreme Court ruling emphasizing the critical importance of ending discrimination against lesbians and gays.

PFAW Foundation