In the Tea Party, it’s all the rage these days to declare everything unconstitutional – Social Security, Medicare, unemployment insurance, disaster relief, federal civil rights laws, health care reform, basically any law that enables the federal government to take on national-scale problems.
One of the main strategies that the Tea Party has been using to push this extreme and regressive view of the Constitution is pushing aside the Commerce Clause, the clause in the Constitution that gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”
The Commerce Clause, long recognized by courts as the rationale for important progressive economic programs, has come under fire from opponents of health care reform, who are arguing in the courts – with mixed success -- that the clause does not allow the Affordable Care Act’s individual health insurance mandate.
In a new report, People For the American Way Foundation Senior Fellow Jamie Raskin argues that “a powerful case can be made “that the Commerce Clause is “the most important constitutional instrument for social progress in our history.”
Without it, Congress could not have passed the National Labor Relations Act, the Fair Labor Standards Act, the Clayton and Sherman Anti-Trust Acts, the Civil Rights Act of 1964’s prohibition of race discrimination in hotels, restaurants and other places of public accommodation, the Occupational Safety and Health Act, the Equal Pay Act, the Clean Air Act, the Clean Water Act and dozens of other federal statutes protecting the environment and establishing the rights of citizens in the workplace and the marketplace.
Why, then, does the Commerce Clause seem pale and dull next to the Free Speech and Equal Protection Clauses?
Perhaps it is because these provisions clearly declare radiant principles of liberty and equality that translate into easily understood and intuitively attractive protections against arbitrary government power.
Because the Commerce Clause has been a powerful instrument of social reform over the last century, its meaning has periodically provoked deep jurisprudential controversy. This is ironic since the Court routinely and unanimously upheld congressional assertion of a comprehensive federal commerce power before broad democratic purposes entered the picture. The commerce power became the target of virulent attack by corporate conservatives when progressives and labor gained political influence and used this power as the constitutional basis upon which to regulate and improve the character, terms and conditions of the American workplace and marketplace in favor of large numbers of the American people.
Raskin follows the Commerce Clause from its origins at the Constitutional Convention, through the Lochner era, when an activist court “put the Commerce Clause in a straightjacket” to strike down federal worker protection laws and other attempts to regulate interstate commerce, to the late 1930s, when the court returned to a more expansive view of the clause, allowing progressive economic programs and civil rights reforms to flourish, to the Rehnquist Court, which again began to narrow down the scope of Congress’s constitutional regulatory power, to challenges to the Affordable Care Act, which threaten to take us back to the Lochner era.
What if our federal government didn’t have the power to provide for emergency disaster relief? To prevent children from being put to work at an early age…without even the protection of a minimum wage? To prohibit discrimination in employment, public accommodations, and public schools? To help struggling states fund public education?
These are the logical ends of the radical, regressive vision of the Constitution that has become popular among the Tea Party -- and that for the first time is enjoying serious consideration in the halls of Congress and in federal court rooms.
The Center For American Progress’s Ian Millhiser released a paper today outlining some of the ways the Tea Party’s selective worship of parts of the Constitution threatens to derail the success of the hard-won protections contained in the whole Constitution. Millhiser brainstorms a list of some of the things that would be unconstitutional under the Tea Party’s Constitution:
- Social Security and Medicare
- Medicaid, children's health insurance, and other health care programs
- All federal education programs
- All federal antipoverty programs
- Federal disaster relief
- Federal food safety inspections and other food safety programs
- Child labor laws, the minimum wage, overtime, and other labor protections
- Federal civil rights laws
You can add to that the basic definition of citizenship and the concept of separation of church and state. And that doesn’t even include the progressive amendments to the Constitution that Tea Party activists want to roll back, such as the amendment providing for the direct election of U.S. senators.
PFAW examined the Tea Party’s dangerous cherry-picked Constitution in a report last year, Corporate Infusion: What the Tea Party’s Really Serving America , which demonstrates that the Tea Party’s supposed allegiance to the Constitution deliberately ignores the text and history of the original document and the progressive amendments that have extended its freedoms to more and more Americans.
Earlier this week, PFAW Foundation, CAP and the Constitutional Accountability Center launched an effort called “Constitutional Progressives,” aimed at protecting and defending the whole Constitution – it’s its text, history and more than 200 years of amendments. You can sign a pledge to support the whole Constitution at constitutionalprogressives.org.
When Katie Carmichael and Deirdre DiBiaggio went to their town clerk in Ledyard, New York recently to obtain a marriage license, they were met with an unwelcome surprise. The town clerk, Rose Marie Belforti, refused to grant them a license because she objected to New York’s new law legalizing same-sex marriages. She told Carmichael and DiBiaggio to come back on another day to obtain a license from a subordinate officer.
Marriage equality loses some of its “equality” when same-sex couples are forced to jump through hoops that weren’t there before in order to obtain a marriage license. Carmichael and DiBiaggio contacted People For the American Way Foundation to help them fight back against this clear instance of discrimination. PFAW Foundation recruited the law firm Proskauer Rose, LLP to provide pro bono counsel to the couple, and the firm sent a letter to town officials urging the town clerk to follow the laws of the state or resign her position.
In a town meeting on Monday night, the issue of the clerk’s refusal to do her job was not addressed. In response, PFAW Foundation launched a petition demanding that Belforti to perform her job duties, follow the laws of New York and grant same-sex marriage licenses or resign her post.
The Brookings Institution today released a new extensive poll on American attitudes toward racial and religious diversity in the ten years since 9/11. There are a whole lot of interesting themes in the study, but one thing that stood out was the amazing success of Fox News’ concerted misinformation campaigns on race and religion.
When Brookings asked participants about their views on American Muslims, those who trust Fox News -- along with those who trust public television -- were more likely than those who trust other news sources to “report knowing a lot about the beliefs and practices of Muslims." But Fox News viewers were far more likely than other subgroups or the general public to say “that the values of Islam are at odds with American values” and to agree that “American Muslims want to establish shari’a law in the U.S.”
Those who trust Fox News were also more likely than other groups to agree that “discrimination against whites has become as big a problem as discrimination against blacks and other minorities.”
Some of this can probably be contributed to self-selection – those who think that Muslims want to establish Sharia law and that white people face greater discrimination than minorities are more likely to want to watch news that affirms their views. But what Fox News does so well is to present its audience with a closed world of right-wing “facts” – on Muslims, on race, on economics – and repeat those "facts" over and over until they seem to be unquestionable truths. It’s no wonder, then, that Fox News viewers were the most likely to report being Islam experts, while having wildly off-base views on American Muslims.
For more on how Fox News and other right-wing media outlets have succeeded in making up and popularizing their own “facts” on American Muslims, check out PFAW’s report The Right Wing Playbook on Anti-Muslim Extremism.
Texas Gov. Rick Perry raised eyebrows yesterday when, while campaigning in South Carolina, he likened the struggles of corporations resisting paying their fair share in taxes to the civil rights movement. When told that he was visiting a town where civil rights advocates held a sit-in fifty years ago, Perry mused that the corporate fight against taxes and regulation is an extension of the civil rights movement: “I mean we’ve gone from a country that made great strides in issues of civil rights,” Perry said, “And as we go forward, America needs to be about freedom. It needs to be about freedom from over-taxation, freedom from over-litigation, freedom from over-regulation.”
But it is important to remember that Perry’s fight for lower taxes and regulations for corporations (on the backs of low-income families) is not just an economic position but also a spiritual issue. Before his Response prayer rally earlier this month, Perry told The 700 Club that he would be praying to end “government’s over-taxed, over-regulated, over-litigated” policies that have “caused roadblocks to economic prosperity.”
In an interview with televangelist James Robison in May, Perry claimed that the current economic crisis was God’s way of ending our “slavery” to government. Like civil rights leaders who used the story of Exodus in their struggle against discrimination, Perry contended that “Pharaoh” exists today in the form of government and “we’ve become slaves to government”:
On August 18, the Department of Homeland Security announced a major shift in its deportation priorities, monumental news and a very encouraging first step toward comprehensive immigration reform in America. DHS will now focus its deportations on only the highest priority cases, primarily those with criminal records or who pose threats to national security. Low priorities will include veterans, those brought to the US as children, and spouses and families, where the administration’s understanding includes LGBT families. All 300,000 cases currently pending are up for review, as are future cases.
This change in policy is a significant victory for advocates of comprehensive immigration reform, including supporters of the DREAM Act and the Uniting American Families Act, but much more work remains to be done. The change only applies on a case-by-case basis: as José Antonio Vargas, founder of DefineAmerican.com, pointed out on his blog, broad policy change will have to come out of Congress. It seems the Obama administration has done as much as it can while Republicans continue to move the goal-posts on what they deem acceptable, as Rachel Maddow argued last night. Indeed, the Obama Administration has met Republican demands in increasing enforcement: 2009 and 2010 saw a continued increase in the number of people deported, despite a sharp decline in border apprehensions, meaning the Administration is deporting more people even while fewer are trying to get into the country illegally. We must continue to push for change that comprehensively addresses the needs of millions more immigrants not affected by this announcement.
There are an estimated 36,000 gay and lesbian binational couples in the United States. Because of the Defense of Marriage Act (DOMA) and other discriminatory federal policies, these Americans are unable to sponsor their foreign-born same-sex spouses.
Meet Frances Herbert and Takako Ueda – they need your help! With Takako’s student visa set to expire, the threat of Takako’s deportation looms large for a couple who is legally married in Vermont and has known each other for over 30 years.
Anthony Makk and Bradford Wells are a couple in San Francisco who have been married for seven years. However, because their marriage is not recognized by the federal government, Wells, an Austrialian, faces deportation later this month.
Earlier this year, Rep. Jerrold Nadler and Sen. Patrick Leahy introduced the Uniting American Families Act (UAFA). It is a meaningful step toward providing equality to same-sex couples and keeping their families together. It would allow many same-sex partners to begin the immigration process more quickly, efficiently, and with fewer limitations. For many, it could very well be the only avenue available to keep their families together in the US.
Please join us in calling on President Obama and the Department of Homeland Security to keep couples like Frances and Takako and Anthony and Bradford together. Also, contact your senators and representative and urge them to cosponsor UAFA. All families deserve to stay together and have a chance at pursuing the American dream.
This op-ed was originally published at OtherWords.org
Americans realize that our rights and liberties depend on having a system of justice that we can trust. We know we should be able to show up in court to contest anything from a parking ticket to felony and make our case — whether we're rich or poor.
But there's one U.S. court where it's increasingly hard for individual Americans to have their voices heard. The Supreme Court — our court of last resort — is making it harder for individual citizens to hold the rich and powerful accountable.
In recent years, the high court has consistently twisted the law and Constitution to put giant corporations' profits over the rights of individual Americans. That means it's getting harder for citizens to seek justice when corporations stiff us.Supreme Corp.
In June, for instance, the Supreme Court ruled that more than a million women who had suffered wage discrimination as employees of Walmart couldn't join together to sue the company. Several women had filed a class action suit against the company on behalf of themselves and up to 1.5 million other women who faced similar treatment, seeking to pool their resources in order to go up against one of the most powerful corporations in the world. But the majority opinion ignored what the women had in common and focused instead on the differences bound to arise within a group that large, ruling that they couldn't go in it together to hold Walmart accountable. By sharply reducing the ability of employees to pool their resources, the court has made it easier for big employers to discriminate.
The Walmart case is only one example of the Supreme Court's growing tendency to side with the interests of big corporations over the rights of ordinary citizens. Earlier this year, the court ruled that Californians who had fallen prey to an alleged scam by their cell phone company couldn't join together to hold the company accountable. Because each customer was cheated out of a relatively small amount, few customers would go to the trouble of recovering their money. Many victims had not even noticed the relevant charge in their bill.
For these reasons, only a large class action lawsuit would serve to hold the company accountable. In another case, the court ruled that a financial firm accused of defrauding its investors couldn't be held liable because the firm had protected itself with a cleverly designed corporate structure. In doing so, the court both ignored the clear meaning of the law and essentially provided financial firms with an instruction manual on how to defraud their clients without being caught.
In the past year, the Supreme Court also handed two big victories to pharmaceutical companies. In one, it ruled that a state couldn't prohibit the sale or use of pharmacies' prescription data by drug companies without the prescribing doctor's authorization. In the other, the court let a pharmaceutical company off the hook for failing to warn about the dangerous side effects of a drug it was selling — a failure that resulted in at least one patient developing a painful and incurable neurological disorder.
Of course, sometimes the law really is on the side of big business. Our justice system requires that big corporations get a fair hearing just as ordinary citizens do. But they don't deserve more of a voice than the rest of us. The Supreme Court, guided by a right-wing majority, has increasingly bought the convoluted arguments of moneyed corporations lock, stock, and barrel, while turning a blind eye to the law — to say nothing of the impact on ordinary Americans. These decisions don't just hurt the individuals directly involved in them. They hurt us all, by limiting our rights and sending a signal to the wealthy and powerful that they can go ahead and abuse the rest of us without consequence.
Our founders wrote the Constitution to protect individuals against the whims of the powerful. But too often lately, the Supreme Court has twisted our laws to protect the powerful from being held accountable by individuals. Supreme Court justices and lower federal court judges must defend the Constitution, not twist it beyond recognition.
Marge Baker is executive vice president of People For the American Way.
The day before last week's historic hearing on repealing the discriminatory Defense of Marriage Act (DOMA), President Obama reiterated his commitment to fighting for LGBT equality. White House Press Secretary Jay Carney read a brief but important statement expressing the president’s support for the Respect for Marriage Act.
President Obama understands that the Respect for Marriage Act is about ensuring that all families are treated equally and with the dignity and respect they deserve.
The bill currently has 120 and 27 cosponsors in the House and Senate, respectively. Please contact your senators and representative and ask them to join the President in fighting to repeal DOMA and fulfilling the promise of equality for all.
Today, Sen. Patrick Leahy convened the Senate Judiciary Committee to hold the body's first ever hearing on the repeal of the Defense of Marriage Act (DOMA). DOMA, which prohibits the federal government from recognizing legal same-sex marriages, was signed into law in 1996, and since then has had a tremendous impact on the lives of thousands of married gay and lesbian couples and their families.
In March, Rep. Jerrold Nadler and Sen. Dianne Feinstein introduced the Respect for Marriage Act, which would repeal the discriminatory policies of DOMA and provide the same federal rights and benefits to same-sex married couples as their opposite-sex counterparts.
The three-panel hearing began with powerful and profound testimony from Rep. John Lewis, a leader of the Civil Rights movement. Calling DOMA a “stain on our democracy,” Lewis reaffirmed his continued commitment to fighting for the civil rights of all people, including gays and lesbians.
Representative Nadler echoed much of Lewis’ testimony, adding that DOMA hurts same-sex couples, especially those with children, because of the financial burdens that it places on them. Many of the witnesses in the second panel told stories of how the discriminatory law has been both a psychological and financial hardships for them and their spouses.
Because only two DOMA-supporting senators, Orin Hatch and Chuck Grassley, were willing to show up at the hearing, the task of arguing against the legislations repeal was left to some of the witnesses.
Edward Whelan of the Ethics and Public Policy Center claimed that the fight for marriage equality and repeal of DOMA is part of the left’s plan to “path the way for polygamy and other polyamorous relationships,” ignoring the fact that no state to legalize marriage equality has seen any organized movement to legalize polygamy.
California's Governor Jerry Brown signed the Fair, Accurate, Inclusive, and Respectful Education Act (FAIR Act) today, a landmark piece of legislation requiring the state’s public schools to include LGBT history in their curricula. This major step forward is not only a sign of a significant societal shift, but is also proof lawmakers, activists, and everyday people are working to make things better for LGBT youth.
This exciting news comes at a time when we too frequently hear about numerous LGBT students suffering constant—and sometimes violent—bullying and harassment by their peers and even teachers. Though the FAIR Act is by no means a solution to the bullying problem by itself, its impact will hopefully help foster an environment of tolerance and respect in California’s public schools.
While states such as California continue to make important strides towards equality and inclusiveness, it is important that we continue tackling the bullying problem head on by supporting federal legislation such as the Safe Schools Improvement Act, the Student Non-Discrimination Act, and the Tyler Clementi Higher Education Act.
To learn more about these important pieces of legislation, please see our fact sheet on safe school and find out what you can do to support this effort.
Last year, we wrote about Joshua Vandiver and Henry Velandia, a married couple who risked being separated because of discrimination in federal immigration laws. Vandiver, an American citizen, and Velandia, a Venezuelan, were married in Connecticut, but because the Defense of Marriage Act prohibits federal agencies from recognizing same-sex marriages, Vandiver was unable to sponsor Velandia for a green card, and Velandia was at risk of being deported.
Then, earlier this month, Immigration and Customs Enforcement quietly closed the case against Velandia – in a move that could set a powerful precedent for how immigration officials deal with cases of married gay couples. From the New York Times:
In a decision that could have far-reaching effects on immigration cases involving same-sex couples, federal officials have canceled the deportation of a Venezuelan man in New Jersey who is married to an American man, the couple’s lawyer said Wednesday.
Josh Vandiver, left, and his husband, Henry Velandia, outside the immigration court in Newark on Friday.
The announcement comes as immigration officials put into effect new, more flexible guidelines governing the deferral and cancellation of deportations, particularly for immigrants with no serious criminal records.
Immigration lawyers and gay rights advocates said the decision represented a significant shift in policy and could open the door to the cancellation of deportations for other immigrants in same-sex marriages.
“This action shows that the government has not only the power but the inclination to do the right thing when it comes to protecting certain vulnerable populations from deportation,” said the couple’s lawyer, Lavi Soloway.
The case has been closely watched across the country by lawyers and advocates who viewed it as a test of the federal government’s position on the Defense of Marriage Act, a federal law that bars the federal government from recognizing same-sex marriages.
Vandiver, a Princeton graduate student, and Velandia told their story in a video for the Daily Princetonian last year:
Thirteen members of the Senate are the latest voices in the It Gets Better Project. In this five-minute long video, senators from across the country speak out to send a message of hope and support for LGBT youth and a call to action for all Americans. Check it out:
Through its efforts and mission the It Gets Better Project sends a positive message to LGBT youth, but I applaud the senators for taking the message one step further by saying: “we’re making it better”. Going beyond the simple, yet powerful, message of “it gets better,” these senators show us that taking action—and not passively waiting—will result in significant advances and great victories for LGBT rights.
Pointing out their support for repeal of Don’t Ask, Don’t Tell, the Defense of Marriage Act, and some even speaking out in support of marriage equality, these senators show their commitment to fighting for the LGBT community.
“It’s going to get better. Believe in it, let’s fight for it.” - Senator Udall (CO)
It is disappointing, however, that we only hear from the voices of Democrats. Speaking out against harassment and discrimination of any form, against any group should transcend partisan politics and be countered with action from both sides of the aisle.
In talking about the importance and necessity of working together, Senator Richard Blumenthal of Connecticut put it best:
“Our nation has always done better when all of us, no matter where we’re from, what we look like, or whom we love, work together.”
Making it better to ensure that it gets better requires courage, commitment, and hard work on the part of both our leaders and individuals. I am so pleased to see a handful of senators coming out in support of LGBT rights and fighting to fulfill the promise of equality for all.
Special thanks to the following senators for speaking out in support of LGBT rights and continuing the fight for equality: Sen. Richard Blumenthal (CT), Sen. Sherrod Brown (OH), Sen. Maria Cantwell (WA.), Sen. Dick Durbin (IL.), Sen. Dianne Feinstein (CA), Sen. Al Franken (MN), Sen. Kirsten Gillibrand (NY), Sen. Chuck Schumer (NY), Sen. Jeanne Shaheen (NH), Sen. Mark Udall (CO), Sen. Sheldon Whitehouse (RI), and Sen. Ron Wyden (OR).
And I would like to extend a very special thank you to Senator Chris Coons (DE), who believes “equality is a question of morality,” for leading this important and inspiring effort.
It is my hope that we will soon hear from more members of Congress—Democrats and Republicans alike—with a similar message of making it better for LGBT youth.
The Senate Judiciary Committee held an important hearing this morning looking into the disturbing trend of the Roberts Court to shut down people’s access to justice when they go to court to vindicate their rights against large corporations.
The hearing was on Barriers to Justice and Accountability: How the Supreme Court's Recent Rulings Will Affect Corporate Behavior. Chairman Leahy opened the hearing discussing how recent Supreme Court cases are making it harder for working Americans to get their day in court. He expressed particular concern about three cases:
The committee invited four distinguished people to address the issue: Betty Dukes (plaintiff in the sex discrimination case against Wal-Mart) was the one panelist who was also a party to one of the cases being discussed. She spoke poignantly about her experience at Wal-Mart and the fear that so many women have of going against their employer, especially one as powerful as Wal-Mart. She promised to continue her fight, but knows that without a national class action, many women will be intimidated into not litigating.
Andrew J. Pincus (a Washington lawyer who has argued many cases before the Court) and Robert Alt (from the Heritage Foundation) denied that the Court was tilting unfairly to favor corporations, argued that the cases were decided rightly, and stated that the Court was simply upholding existing law. In contrast, Melissa Hart (law professor at the University of Colorado) and James Cox (law professor at Duke) took the position that the Court is wrongly shielding wrongdoers from accountability.
Professor Hart correctly characterized as a policy decision the Roberts Court's tendency to interpret procedural law so restrictively, despite congressional intent otherwise, so that Americans become unable to present their case to an impartial court.
Senator Whitehouse discussed the critical role juries play in American government. He noted that juries are mentioned three times in the Constitution, and that they remain a government institution that Big Business cannot corrupt. For years, the far right has been denigrating "trial lawyers" and "runaway juries" in an effort to keep Americans from being able to hold the powerful accountable. Whitehouse argued that the Roberts Court is acting consistently with that pattern.
People For the American Way Foundation submitted testimony to the committee on how the Roberts Court has removed substantive and procedural protections that are the only way that individuals can avoid becoming victimized by giant corporations that dwarf them in size, wealth, and power. These decisions often provide road maps to corporate interests in how to avoid accountability for harm that they do. The constitutional design empowering individuals to consolidate their power against corporations is slowly being eroded by a fiercely ideological Court. Today's hearing is part of an effort to expose the harm that is being done.
Saturday was the 70th anniversary of President Roosevelt’s issuance of Executive Order 8802, which prohibited racial discrimination by defense contractors. Last week, Congressman Bobby Scott hosted a press conference and briefing in honor of the anniversary of this event, which marked the first time a U.S. president had acted to combat discrimination by private employers who were using federal taxpayer money. Future presidents expanded on President Roosevelt’s action and added to its protections.
However, this was more than just a celebratory event of an important civil rights milestone: it was a call to action to correct an erosion of equal employment opportunity law that has been in effect since 2002. That’s when President Bush signed an Executive Order that made discrimination on the basis of religion by faith-based organizations using federal taxpayer money legal. In so doing, he reversed our nation’s continuous expansion of the promise of equal protection and opened a gaping hole in our nation’s civil rights protections. Religious entities had always been able to discriminate based on religion using their own money, but never to use taxpayer money to do so.
All the panelists were united in asking President Obama to fulfill his campaign promise of restoring the law. On the panel were: Congressman Bobby Scott (convener of the event); Congressman Jerrold Nadler; Professor Eric Arnesen (professor of history at George Washington University and biographer of civil rights and labor leader A. Philip Randolph, whose activism prompted FDR’s executive order); Rabbi David Saperstein (Director of the Religious Action Center of Reform Judaism, and also a board member of our affiliated People For the American Way Foundation); Barbara Arnwine (Executive Director of the Lawyers’ Committee for Civil Rights Under Law); Hilary Shelton (Director of the NAACP Washington Bureau); and Rev. Dr. Paul L. Brown, Sr. (Pastor of Miles Memorial CME Church and member of People For the American Way’s African American Ministers In Action).
Among other things, speakers discussed how employment discrimination harms the victims and society as a whole; warned that religion can easily be used as a proxy for race, sex, sexual orientation, and gender identity; condemned discrimination paid for by the tax dollars of its victims; asked why the religion of someone ladling out soup for the hungry should matter; and warned of the dangerous consequences to churches that want to retain federal funding they have become dependent on. As the last speaker, Rev. Dr. Brown opened a window into his daily work helping the hungry and the homeless, the “least and the lost,” and strongly condemned federally funded discrimination.
When he was running for President, then-Senator Obama promised to reverse President Bush’s policy, but he has yet to do so. What better time than the anniversary of the issuance of Executive Order 8802 for President Obama to put our nation back on the right road and restore through executive order the prohibition against federally funded discrimination? Yesterday, People For the American Way and African American Ministers In Action joined more than 50 other civil rights and religious organizations asking him to do just that.
One of the daunting realities of modern life is that we as individuals are confronted by far more powerful corporations. When we want to buy a product, get a job, or seek to hold a large corporation accountable for its misdeeds, our negotiating power is limited by the fact that we are individuals. In contrast, due to its eternal life, its being composed of thousands or even millions of people, and its many state-granted benefits such as limited liability, corporations have consolidated vast resources that would be impossible for any living person attain.
So when that corporation does wrong against individuals – when it engages in a pattern of illegal discrimination, sells defective products, or cheats its customers – the victims often are powerless to hold the corporation accountable unless they, too, can consolidate their resources.
That’s why class actions are so important – and why Big Business keeps asking the Roberts Court to sabotage people’s ability to band together in class actions. Earlier this term, the Corporate Court undercut class actions against consumer fraud in AT&T v. Concepcion. And Monday, it struck out against women employees seeing to hold Wal-Mart accountable for illegal employment discrimination.
Wal-Mart is the nation’s largest private employer. Several women sued the corporate giant on behalf of themselves and similarly situated women around the country - anywhere from 500,000 to 1.5 million employees. To sue as a class, they would have to show that they have claims typical of the whole group.
So that’s what they did. As Justice Ginsburg’s dissent pointed out, the district court that had certified them as a class had identified systems for promoting in-store employees that were sufficiently similar across regions and stores to conclude that the manner in which these systems affect the class raises issues that are common to all class members. The women showed that Wal-Mart has a national corporate climate infused with invidious bias against women. Wal-Mart’s policy is to have personnel decisions made by local managers, all of whom are products of that toxic corporate climate.
But the conservative majority’s 5-4 opinion, authored by Justice Scalia, went out of its way to overlook that obvious commonality, focusing instead on the differences that will inevitably be present when a corporate giant targets so many people. The Roberts Court accepted Wal-Mart's assertion that the women cannot be designated a class because the representative plaintiffs do not have claims typical of the whole group.
What this 5-4 opinion states is that Wal-Mart is so large – and the discrimination it has allegedly engaged in is so great – that its victims cannot unify as one class to hold the company accountable. Individuals or small groups are much less likely to have the resources to seek justice.
Large corporations may be licking their chops at the opportunities the Roberts Court has opened to them to violate the law. They realize that a rule without a remedy is no rule at all.