corporate court

New Study Examines Corporate Echo Chamber at Supreme Court

A Reuters study documents the influence of a small number of Supreme Court lawyers, most representing corporations.
PFAW Foundation

Warren Warns of ‘Corporate Capture of Federal Courts’

At an AFL-CIO convention this weekend, Massachusetts Sen. Elizabeth Warren called out the increasingly pro-corporate lean of the U.S. Supreme Court. Politico reports:

On the opening day of the AFL-CIO’s convention, Warren — the highest-profile national Democrat to address the gathering here — warned attendees of a “corporate capture of the federal courts.”

In a speech that voiced a range of widely held frustrations on the left, Warren assailed the court as an instrument of the wealthy that regularly sides with the U.S. Chamber of Commerce. She cited an academic study that called the current Supreme Court’s five conservative-leaning justices among the “top 10 most pro-corporate justices in half a century.”

“You follow this pro-corporate trend to its logical conclusion, and sooner or later you’ll end up with a Supreme Court that functions as a wholly owned subsidiary of Big Business,” Warren said, drawing murmurs from the crowd.

The study that Warren was referring to is a Minnesota Law Review study that found that the five conservative justices currently on the Supreme Court have sided with corporate interests at a greater rate than most justices since World War II. All five were among the ten most corporate-friendly justices in over 50 years. Justice Samuel Alito and Chief Justice John Roberts were the top two.

The Supreme Court majority’s consistent twisting of the law to put the interests of corporations over those of individuals is one of the main characteristics of the Roberts Court, but it is not the only extremely influential court with such a pro-corporate bent. In fact, the Court of Appeals for the District of Columbia Circuit, to which President Obama has nominated three highly qualified candidates, has been following the same trend, also because of the influence of judges named by George W. Bush.  This is the court whose ultra-conservative justices declared that cigarette label warning requirements violate the free speech rights of tobacco companies and that requiring that employers inform employees of their right to unionize violates the free speech rights of the corporations.

While there is not currently a vacancy at the Supreme Court that could affect its balance, there are three at the DC Circuit.  That is why Senate Republicans are working so hard to keep them empty.

PFAW

Bad News for Workers in the Supreme Court's Vance Case

The Corporate Court ignores the realities of the workplace and frustrates the goals of Title VII in narrowing the definition of a supervisor.
PFAW Foundation

A Good Day at the Court for Drug Manufacturers (But Not the Rest of Us)

The Court's sharply divided 5-4 opinion in Mutual Pharmaceuticals v. Bartlett leaves severely injured consumers with no remedy.
PFAW Foundation

Corporate Court Lets Monopolists Bypass Antitrust Laws

The Roberts Court empowers big corporations to violate antitrust laws and prevent small business victims from vindicating their federal rights.
PFAW Foundation

The D.C. Circuit and the 'Transformation of the First Amendment'

Garrett Epps writes today in The Atlantic about how the D.C. Circuit Court of Appeals, still dominated by far-right George W. Bush nominees, has been instrumental  in “the long, doleful transformation of the First Amendment from an individual right of conscience into a shield against business regulation.”

He focuses on the latest example of right-wing D.C. Circuit judges twisting the Constitution to favor corporations over workers and consumers:

We've read of the violence done to the National Labor Relations Board by the D.C. Circuit's December decision in Noel Canning v. NLRB. Having read that opinion repeatedly, I believe it does violence to the Constitution as well. The D.C. Circuit last year voided a Food and Drug Administration regulation requiring graphic warning labels on cigarette labels as a violation of tobacco companies' "free speech" rights -- to me, another grave misstep. And I feel the same way about the Circuit's decision this week in National Association of Manufacturers v. NLRB. In this case, three Republican nominees held that the First Amendment's right against "compelled speech" protects employers against an NLRB regulation requiring them to post a government poster notifying workers of their rights. The decision is another step on the long, doleful transformation of the First Amendment from an individual right of conscience into a shield against business regulation.

We posted an infographic yesterday that shows just how ideologically skewed the D.C. Circuit is. George W. Bush made a concerted effort to pack the court with judges who shared his right-wing ideology (including John Roberts, who went on to be one of the top two most pro-corporate Supreme Court Justices in the past 65 years). In contrast, President Obama is the first president since Woodrow Wilson to not place a single judge on the court during his full first term.

 

PFAW

Study: Roberts and Alito Most Pro-Corporate Justices in 65 Years

We write frequently about the extraordinarily pro-corporate leanings of the current Supreme Court, where the Justices bend the law and twist logic in order to rule in favor of large corporate interests and against the rights of individuals harmed by those interests. In the past week, two new studies have provided powerful numbers to back up the trend.

In a report released on Thursday, the Constitutional Accountability Center found that the corporate lobbying group U.S. Chamber of Commerce has won a stunning two-thirds of the cases that it has been involved with before the Roberts Court. And this weekend, The New York Times reported on a new study from the Minnesota Law Review that found that the current Supreme Court’s five conservative justices have sided with corporate interests at a greater rate than most justices since World War II. In fact, Chief Justice John Roberts and Justice Samuel Alito, both George W. Bush nominees, are the two most pro-corporate Supreme Court justices to sit in the past 65 years:
 

The Times writes:

But the business docket reflects something truly distinctive about the court led by Chief Justice John G. Roberts Jr. While the current court’s decisions, over all, are only slightly more conservative than those from the courts led by Chief Justices Warren E. Burger and William H. Rehnquist, according to political scientists who study the court, its business rulings are another matter. They have been, a new study finds, far friendlier to business than those of any court since at least World War II.

In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes. Business groups say the Roberts court’s decisions have helped combat frivolous lawsuits, while plaintiffs’ lawyers say the rulings have destroyed legitimate claims for harm from faulty products, discriminatory practices and fraud.

Published last month in The Minnesota Law Review, the study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10. But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.

PFAW

New Report Exposes Chamber of Commerce’s Success at Supreme Court

The current Supreme Court’s pro-corporate leanings have resulted in a huge spike in rulings favoring corporations over individual Americans, according to a new report from the Constitutional Accountability Center. MSNBC’s Zachary Roth goes through the report’s findings, including that under Chief Justice Roberts, the behemoth corporate lobbying group the U.S. Chamber of Commerce has won a full two-thirds of the Supreme Court cases in which it has been involved:

The major result of the Chamber’s success, legal scholars say, has  been a string of rulings that threaten to block the courthouse door to ordinary Americans looking to hold corporations accountable. And with court-watchers’ attention focused on higher-profile gay marriage and voting rights cases this term, it’s a development that’s flown largely under the radar.

The Roberts Court’s pro-business outlook has been apparent for several years. But the CAC report suggests it may be accelerating. Both the Chamber’s participation rate and its success rate have risen significantly in recent years. This term, the Chamber filed amicus briefs in 24% of cases, up from 10% during the latter part of the Rehnquist Court, from 1994 to 2005, a period of stability when there were no changes to court personnel. And since John Roberts became Chief Justice, the Chamber has won 69% of the cases in which it’s gotten involved (see chart below). That’s up from 56% during the latter part of the Rehnquist Court, and just 43% during the last five years of the Burger Court, from 1981 to 1986.

Jamie Raskin, Senior Fellow of People For the American Way Foundation, chronicled the “Rise of the Corporate Court” in a 2010 report. He wrote:

Americans across the spectrum have been startled and appalled by the Citizens United decision, which will "open the floodgates for special interests—including foreign companies—to spend without limit in our elections," as President Obama said in his 2010 State of the Union Address. According to a Washington Post nationwide poll, more than 80% of the American people reject the Court's conclusion that a business corporation is a member of the political community entitled to the same free speech rights as citizens.

Yet, the Court's watershed ruling is the logical expression of an activist pro-corporatist jurisprudence that has been bubbling up for many decades on the Court but has gained tremendous momentum over the last generation. Since the Rehnquist Court, there have been at least five justices—and sometimes more—who tilt hard to the right when it comes to a direct showdown between corporate power and the public interest. During the Roberts Court, this trend has continued and intensified. Although there is still some fluidity among the players, it is reasonable to think of a reliable "corporate bloc" as having emerged on the Court.

What is striking today, however, is how often the Roberts Court, like its predecessor the Rehnquist Court, hands down counter-intuitive 5-4 victories to corporations by ignoring clear precedents, twisting statutory language and distorting legislative intent. From labor and workplace law to environmental law, from consumer regulation to tort law and the all-important election law, the conservative-tilting Court has reached out to enshrine and elevate the power of business corporations --what some people have begun to call "corporate Americans"--over the rights of the old-fashioned human beings called citizens.

With Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, Clarence Thomas and Anthony Kennedy in the driver's seat today, the "least dangerous" branch of government now routinely runs over our laws and our politics to clear the road for corporate interests. When it comes to political democracy and social progress, the Supreme Court today is the most dangerous branch. The road back to strong democracy requires sustained attention to how the Court is thwarting justice and the rule of law in service of corporate litigants.

A poll commissioned by People For the American Way and fellow progressive groups late last year found that the Corporate Court was a concern for a majority of voters.

PFAW

Supreme Court Rules in Favor of Corporations in Human Rights Abuses Case

Back in September, PFAW senior fellow Jamie Raskin wrote a preview of the major cases coming before the Supreme Court this term, one of which, Kiobel v. Royal Dutch Petroleum, deals with the ability of foreign nationals to sue corporations for human rights abuses in American courts. The Supreme Court today issued a sweeping ruling siding with the multinational corporations accused of abuse. Main Justice sums up the facts of the case:

The plaintiffs accuse Royal Dutch, the Shell Transport and Trading Company and their joint Nigerian subsidy of allowing, indeed encouraging, atrocities by the Nigerian military against people who were protesting environmental damage caused by drilling in the Niger Delta in the 1990s. The companies were complicit in beatings, rapes and mass arrests by paying the soldiers, feeding them and allowing them to use oil company property as staging areas for their attacks, the plaintiffs maintain.

At issue was the application of the Alien Tort Statute, enacted in 1789, that gives United States courts jurisdiction over civil actions brought by aliens alleging torts committed in violation of United States treaties or international law. The seldom-used ATS was enacted partly in response to piracy on the high seas. The Nigerian plaintiffs, now legal residents of the United States, tried to use it in a present-day context.

As Jamie Raskin wrote in his Supreme Court preview, the Second Circuit radically twisted legal precedent in this case to rule that individuals could not sue corporations under the Alien Tort Statute:

Jurisdiction to hear the suit was clear. In 2004, the Supreme Court held, in Sosa v. Alvarez-Machain, that the Alien Tort Statute gave federal courts jurisdiction to hear claims about torts committed against aliens that violate well-established international norms like the human rights norms implicated in this case. Yet a bitterly divided Second Circuit panel in Kiobel held for the first time that the statute does not allow courts to hear suits against corporations as opposed to individuals. The Kiobel majority’s ruling on this issue was amazing since the issue was never raised, never briefed, never argued and never decided in any of the proceedings below that took place over the course of nearly a decade. (This rings a bell for close observers of the Citizens United majority, which also pulled a rabbit out of a hat to ask and answer a question never raised below.)

Today, the Roberts Court agreed. The Court unanimously ruled against the Nigerians in Kiobel, but disagreed about how far the ruling should go. Justice Roberts, writing for the conservative majority, wrote a broad ruling in favor of the corporations accused of human rights abuses. The four moderate justices concurred with the majority’s ruling on this particular case, but left the door open for similar cases to be tried in U.S. Courts. Main Justice explains:

Justice Stephen G. Breyer wrote that the defendants’ “minimal and indirect presence in the United States was not enough to give American courts jurisdiction over the case.”  But he stopped short of declaring that similar cases should never end up in American courts if the abuse at issue “adversely affects an important American national interest.” Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan agreed with him.

Nicole Flatow at ThinkProgress explains the possible implications of the majority’s ruling:

This decision not only means that Nigerians cannot sue foreign corporations for their conduct abroad. On this particular point, the four-justice Breyer concurrence agreed that this case did not pass muster. Roberts’ sweeping pronouncement against extraterritoriality may also mean that foreign nationals subject to abuse, for example, at the hands of a U.S. corporation that houses its factories in places whose laws shield it from liability, or an American citizen who commits human rights violations abroad against foreigners, also could not be subject to suit in the United States.

The scope of the opinion will not become clear until it is interpreted by courts. Extraterritoriality is a legal concept that asks not just whether conduct took place abroad, but also whether the claims “touch and concern the territory of the United States” such that a plaintiff can overcome the presumption against them. The only hint the court gives is that lawsuits against corporations will face a particularly heavy burden, noting, “Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.”

What is clear is that the presumption is exceedingly difficult to overcome, and that both individuals and corporations have a high chance of skirting liability simply by doing their dirty work elsewhere.

PFAW

What Kind of Justice Will We Vote for On Election Day?

President Obama's Supreme Court Justices respect the words and the values of the Constitution and deeply understand the law's impact on everyday Americans.
PFAW

NYT: The Courts as a Political Weapon for the Powerful

As Mitt Romney rightly pointed out in December, one of the most important issues riding on the upcoming presidential election will be the future of the federal courts.


Yet, if 2012 is like other election years, the courts will be discussed relatively little by the candidates. That would be a big mistake. Romney has already signaled to the Republican base that he will move the federal courts even farther right than they already are. He named Robert Bork, the judge whose legal views were so extreme his Supreme Court nomination was rejected by the Senate, to lead his “Justice Advisory Committee,” and has said he would seek to nominate judges like those who have made the current Supreme Court the most conservative in decades.


In an editorial this weekend, the New York Times explained how politics has reshaped the courts and the law under the past three Republican administrations. Courts picked by Mitt Romney and Robert Bork would be no exception:


Each party has its program and works to turn it into law. The great example of political change through legal change was the long, methodical effort to whittle away at segregation from within the legal mainstream that culminated in the court’s decision in Brown v. Board of Education. The conservatives’ legal-political strategy draws from Brown, but it is also vastly different in nature and design.


The struggle for school desegregation was waged by and on behalf of oppressed minority groups seeking to make good on the Constitution’s promise of equal rights. They faced strong opposition from the most powerful people in our society, in courts that were not necessarily sympathetic or overtly hostile to their cause. And they fought a long, incremental campaign.


When Lewis Powell Jr. energized conservatives by writing in 1971 that “the judiciary may be the most important instrument for social, economic and political change,” he was himself an incrementalist and expected others to be.


But the conservative legal battles of our modern times are being waged by the most powerful, often against the weak and oppressed. They began with a carefully planned and successful effort to reshape the courts to be sympathetic to conservative causes. They are largely aimed at narrowing rights, not expanding them — except where property and guns are concerned. And beginning with the Reagan administration, conservatives became impatient with the pace of change brought about from within the mainstream. They sought to remake law into a weapon of aggressive action.
 

PFAW

Corporate Court Rewrites Credit Law to Favor the 1%

Yesterday, the Supreme Court issued an 8-1 opinion in CompuCredit v. Greenwood, written by Justice Scalia, that will bring cheer to powerful corporations that break the law and leave everyday consumers feeling shell-shocked. It turns out that a congressional requirement that companies tell consumers that they have the "right to sue" really doesn't mean much.

CompuCredit is a "credit-repair company" that marketed a subprime credit card to vulnerable consumers with bad credit. It told them that no deposit was required and that they would get $300 in credit upon issuance of the card. However, in small print separate from the "no deposit" promise, it disclosed that it would charge $185 in fees immediately and $257 in fees over the first year. The customers filed a class action lawsuit on behalf of others who were taken in, saying that CompuCredit violated the federal Credit Repair Organization Act (CROA).

However, CompuCredit had required its customers, as a condition of getting the credit card, to sign away their right to sue in a court of law or to engage in any type of class action, forcing them to agree to one-on-one binding arbitration instead. So the company demanded that the class action suit be thrown out of court, citing an obscure but devastatingly important federal law called the Federal Arbitration Act, which generally requires courts to enforce contracts requiring arbitration agreements unless a specific federal statute says otherwise.

The question was whether CompuCredit had the right to make its customers sign a contract agreeing to arbitration. CROA requires credit providers to specifically tell customers in writing that "you have a right to sue," a requirement that CompuCredit had met. In addition, CROA specifically prohibits any contractual provisions that waive a customer's rights under the statute. So the customers argue that their agreement to forego their right to sue in court is void.

In order to rule for the large company that cheated its vulnerable customers, the six-Justice majority opinion had to turn logic on its head. The five conservatives, joined by Justice Breyer, explained with a straight face that:

[The phrase "right to sue"] is a colloquial method of communicating to consumers that they have the legal right, enforceable in court, to recover damages from credit repair organizations that violate the CROA. We think most consumers would understand it this way, without regard to whether the suit in court has to be preceded by an arbitration proceeding.

Yes, it turns out that everyday people interpret the "right to sue" as including private arbitration. If this bizarre supposition didn't hurt so many innocent people, it would be laughable. At least Justices Sotomayor and Kagan, in their concurrence, recognized that the people the statute was designed to protect might interpret "right to sue" to mean "right to sue in court." Unfortunately, even they felt it was a close call as to whether that's what Congress intended.

Only Justice Ginsburg got this one right. As she wrote in her dissent:

The "right to sue," the [majority] explains, merely connotes the vindication of legal rights, whether in court or before an arbitrator. That reading may be comprehensible to one trained to "think like a lawyer." But Congress enacted the CROA with vulnerable consumers in mind—consumers likely to read the words "right to sue" to mean the right to litigate in court, not the obligation to submit disputes to binding arbitration.

Congress wrote this law for the 99%. Yesterday, the Corporate Court rewrote it for the 1%.

PFAW

In Montana, a Chip in the Armor of Citizens United

Late Friday, the Montana Supreme Court ended 2011 with a 5-2 opinion upholding the state's prohibition on corporate spending on independent expenditures to support or defeat a candidate. Although Citizens United struck down the federal law in that area, the Montana Supreme Court found that the state, by presenting a strong evidentiary record, had demonstrated that its law survives the strict scrutiny mandated by Citizens United.

As notable as this decision is, what is particularly striking is the dissent's scathing criticism of the Roberts Court's most notorious ruling to date. Judge James Nelson disagreed with the majority that Montana's law could be distinguished from Citizens United. However, he took the opportunity to discuss the severe flaws of the Citizens United decision and the damage it is doing to our country. Below are a couple of choice excerpts (with internal citations removed):

While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the Supreme Court's decision. And, to be absolutely clear, I do not agree with it. For starters, the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield inordinate power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins; the transition is seamless and overlapping. In my view, Citizens United has turned the First Amendment's "open marketplace" of ideas into an auction house for [Milton] Friedmanian corporatists.

and

I am compelled to say something about corporate "personhood. " While I recognize that this doctrine is firmly entrenched in the law, I find the entire concept offensive. Corporations are artificial creatures of law. As such, they should enjoy only those powers—not constitutional rights, but legislatively-conferred powers—that are concomitant with their legitimate function, that being limited-liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creations of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.

That even the judges who enforce the Roberts Court’s dirty work are compelled to speak out against it shows how deeply unpopular and wrong Citizens United is.

PFAW

Supreme Court Becoming a Prominent Campaign Issue for 2012

The choice of a Supreme Court nominee is one of a president's most important roles, one that has an impact on every American for decades. When Americans vote for president, they are also voting for what the Supreme Court will look like. While that has always been the case, several high-profile cases are making unlikely that anyone will overlook the importance of the Court when they cast their vote in 2012. In recent days, the Court announced that it would hear cases on:

  • the constitutionality of healthcare reform (a case that sets a fundamental challenge to congressional authority to address national problems);
  • Arizona's anti-immigrant bill, which would expose the state’s Latinos to harassment and intimidation regardless of immigration status; and
  • a Texas GOP redistricting scheme that doesn't reflect the substantial growth in the Hispanic population and which the Justice Department says was "adopted with discriminatory purpose."

As a result, a number of press outlets are out with stories on the Court and the election. The Washington Post's The Fix blog has a headline proclaiming "Supreme Court inserts itself into 2012 election in a major way." Politico reports:

Together, the cases will help shape the national political debate as well as the direction of policy on one of the most contentious issues of the election: the power of the federal government. On immigration, the justices will decide whether the federal government has the right to block state efforts to enforce immigration laws. On health care, the high court will wrestle with the question of whether the national government can require individuals to purchase health insurance.

...

While the political impact of the high court's entrance into these pivotal cases won't be clear until the justices rule, some analysts believe Obama would benefit from a decision on his health care law, regardless of the outcome.

"If the court does the unlikely and strikes the law down, he could try to run against the court. And if they uphold it, it takes some of the other side's rhetoric away" by undercutting arguments that the law is unconstitutional, said Rick Hasen, a law professor at the University of California, Irvine. "Immigration is harder to figure," he added.

Politico also quotes a number of legal and political experts and activists discussing the importance of the Court in 2012:

Thomas J. Whalen, Professor of Social Science, Boston University: [The Supreme Court] is one of President Obama's best political trump cards heading into his reelection campaign. He can reasonably argue to independents that although they're not crazy about how he's handled the economy, they'd be even more upset with a staunchly conservative Supreme Court intent on overturning almost a century of social and political reform dating back to the New Deal. ...

and

Michael Keegan, President of People For the American Way: The current Supreme Court, the most conservative in decades, has repeatedly gone out of its way to rule against individual Americans and in favor of powerful corporations, and yet is still little discussed in presidential politics. I hope that the legal battles over Arizona's immigration law and health care reform will focus wider attention on the true importance of the Court in all of our lives.

As Newt Gingrich concocts radical plans to undermine judicial independence and Mitt Romney hires extremist Robert Bork as his legal adviser, the importance of Supreme Court nominations is a conversation that all Americans need to have.

SCOTUSBlog has a good round-up of coverage:

"Yesterday the Court (with Justice Kagan recused) granted cert. in Arizona v. United States, in which the state has asked it to overturn the lower courts' decisions blocking enforcement of four provisions of its controversial immigration law, S.B. 1070 . . . several journalists – including Adam Liptak of the New York Times, Warren Richey of the Christian Science Monitor, Robert Barnes of the Washington Post, and Nina Totenberg of NPR — focused on the case's potential effect on the upcoming presidential election, particularly when combined with the Court's expected rulings on the health care and Texas redistricting cases."

It is hardly news that the Supreme Court is one of the most important issues in any presidential election. George Bush's nominations of John Roberts and Samuel Alito have led to a number of 5-4 decision finding novel ways to prevent individual Americans from exercising their legal rights when they have been wronged by powerful corporations. People's ability to pursue the legal remedies written against employment discrimination, consumer scams, and misleadingly labeled prescription drugs have all been severely undermined by an arch-conservative Supreme Court.

There's no doubt that the Supreme Court is a critical presidential campaign issue.

PFAW

Rick Perry: Don’t Use the Constitution to Interpret the Constitution

Researchers at People For’s Right Wing Watch were watching Mike Huckabee’s presidential candidate forum on Saturday, and picked out this interesting exchange:

First, Perry presents his plan to impose term limits on Supreme Court justices – which he correctly points out would require a constitutional amendment. Then he explains why he wants to do this: because the Supreme Court (which happens to be the most conservative in decades) keeps on making decisions he finds “offensive.”

Perry’s advice to the Justices who keep on offending him: “Don’t use any of these different clauses, whether it’s the Commerce Clause or any of the other clauses to try to try to change what our founding fathers were telling us.”

The Commerce Clause, which gives Congress the power to tackle economic issues that affect the entire country, is at the center of the legal challenges to the Affordable Care Act. It has also played a major role in the formation of the country: according to a report by PFAW Foundation, the clause has been "the most important constitutional instrument for social progress in our history.”

Of course, there can be many different interpretations of the Constitution – that’s what makes so-called “originalism” more opinion than science – but Perry’s doing more than offering a differening interpretation. He’s outright telling us that he wants to ignore the parts of the Constitution that he doesn’t like. In other words, he doesn’t want judges to use the Constitution to interpret the Constitution.

Perry’s latest Constitutional law lecture places him solidly in the company of fellow GOP candidate Newt Gingrich, who has said he’ll urge Congress to subpoena judges who make decisions he doesn’t like and encourage his administration to flatly ignore unpalatable court rulings.
 

PFAW

Supreme Court Asked to Limit Congressional Ability to Protect the Public

The Supreme Court will hear oral arguments on Monday in First American Financial Corporation v. Edwards, a case that threatens to undermine a number of federal statutory protections Americans have fought to have enacted over the years. This case involves standing: Under the Constitution, in order to have their case heard in a federal court, a plaintiff must demonstrate that they have suffered an injury of some sort. The specific question in this case is whether an individual can sue over illegal real estate settlement kickbacks, notwithstanding the fact that those kickbacks did not result in poorer service or increased costs to the individual, if the lawsuit is brought pursuant to a statute giving private parties the ability to hold companies accountable for harm caused by their illegal practices.

When Denise Edwards bought her home, the company she used as her settlement agent was paid to refer her to First American for title insurance, a kickback she says violated the federal Real Estate Settlement Procedures Act (RESPA). Congress adopted RESPA to protect consumers from the national industry problem of kickbacks and referral fees that unnecessarily increase real estate settlement costs. If the statute is violated, the consumer is entitled to collect three times the amount of any settlement charge paid. Edwards filed a class action suit on behalf of similarly situated consumers.

The standing issue is based on the fact that Edwards was not overcharged and did not receive lower quality service. The corporation is using that to argue that Edwards suffered no injury and, therefore, does not have the constitutionally-required standing to file her claim in a federal court.

The Ninth Circuit disagreed, ruling that she did have an injury that gives her standing: the violation of her right under RESPA and the judicial relief the law entitles her to.

RESPA is one of many statutes where Congress has addressed a national problem by prohibiting certain specific harmful practices and giving the right to sue and collect damages to those who are most likely to be injured by those practices, regardless of whether the feared harm actually occurred in that particular case. Other examples include when:

  • a credit report has negative information about you that is older than a certain cutoff date;
  • you are denied a free credit report that you are guaranteed by statute;
  • your employer fails to post a legally required notice of workers' rights;
  • you are not provided legally required notices about your home mortgage; or
  • someone discloses personally identifiable information from your motor vehicle records.

In these and other cases, Congress has created legal rights whose violation – and not some proven loss in that specific case – creates the required standing and the right of private parties to collect damages. Those damages are a key incentive for companies to comply with the law. First American Financial Corporation's dangerously cramped definition of standing would cripple Congress's ability to protect consumers, employees, and others from practices that on the whole harm people and the nation, even if they don't cause harm in every circumstance.

PFAW

A Time for House Party Action

Last night the energy continued to grow as citizens from all over the country gathered in living rooms, church basements, college campuses and “Occupy” protests to discuss the need for a constitutional amendment to undo the Supreme Court’s ruling that lets corporations spend as much as they want to influence our elections.  US Senator Bernie Sanders (I-VT) was the featured speaker during our webcast highlighting the impact the decision will have on our lives and our political system and calling for a constitutional amendment as the remedy.

People For the American Way was one of the proud co-sponsors of the over 200 house parties focused on educating, planning and developing actions in the states. The planning focused on grassroots actions taking place all over the country on January 21, 2012, the second anniversary of the Citizen’s United decision.

Click here to view last night’s webinar. Also visit www.united4thepeople.org  to see many of the organizations working to overturn the Citizens United decision.

PFAW