One Year After Citizens United, the Corporate Court is Still Open for Business

Nan Aron on Huffington Post:

Today marks the one-year anniversary of one of the most notorious and unpopular Supreme Court decisions of recent years. Citizens United v. FEC overturned long-standing precedent and policy, unleashing a torrent of corporate money into American elections that threatens to further distort a political process that is already disproportionately beholden to the interests of powerful corporations.

But the decision in Citizens United to favor corporate interests and enhance their power came as no surprise to anyone paying attention to the increasingly transparent agenda of Chief Justice John Roberts and the conservative majority of this Court.

Alliance for Justice has been tracking this trend for some time, documenting the aggressive tactics of the Court's conservatives to reshape the law, including, as was the case in Citizens United, the deliberate reframing of the legal issues argued by the parties in order to achieve a predetermined result.

From Ledbetter v. Goodyear Tire & Rubber Co., where the Supreme Court overturned a jury's finding that Goodyear had systematically paid Lilly Ledbetter less than her male co-workers, to Exxon Shipping Co. v. Baker, which, after 20 years of litigation, had the effect of reducing a jury's punitive damages award by 90 percent for tens of thousands of victims of the Exxon Valdez oil spill, the Corporate Court has displayed a clear pattern of overreach and ideological bias. This trend of favoring big-business litigants is being put to the test again this term in a series of cases related to corporate prerogatives, many of which have broad implications for American life.

On March 29, the Court will hear Wal-Mart Stores v. Dukes, an enormous employment sex discrimination case, the outcome of which will affect hundreds of thousands of female employees of the retail giant, but will also determine the relative degree of power big business and everyday Americans have within our judicial system.

The Wal-Mart case began as a lawsuit by a former "greeter" named Betty Dukes who felt the company consistently paid her and other female employees less than men, funneled them into lower paying jobs, and denied them the same access to promotions. Ms. Dukes and the other women who eventually joined her lawsuit argue that the class suing Wal-Mart should consist of all the female employees who have long faced ingrained, systematic discrimination throughout the 3,400-store chain, a number that could range between 500,000 and 1.5 million individuals. That would make this the biggest--and potentially most expensive--discrimination case in history.

The company has asked the Supreme Court to throw the case out based on its belief that the class is too big, that there are too many different kinds of people affected, and that each act of alleged bias is a separate issue and can't be lumped together with others. Ominously, the Roberts Court, asked that the parties to the lawsuit be prepared to argue about whether the class itself is properly constituted. This Court has often expanded the issues being argued beyond those a particular case calls for, almost always with the goal of advancing a conservative philosophy and protecting corporate interests.

The fight in the Court isn't over the discrimination claim itself, it's over who can sue Wal-Mart, or any corporation, and how they must do it. The use of class-actions as a means to combat broad-scale discriminatory behavior hangs in the balance.

Significantly, this case has a great deal in common with the recently argued arbitration case, AT&T Mobility v. Concepcion, which was about the ability of groups of victims--in that case, exploited consumers--to band together to combat corporate abuse. Both the AT&T Mobility and Wal-Mart Stores disputes are rooted in the same question: Must the battle against corporate malfeasance be waged either individually or in small groups, where the corporation has the obvious advantage, or can everyday Americans employ the power of numbers (and pooled resources) to fight back on more level ground in the courts?

A third case to watch is American Electric Power Co., Inc. v. Connecticut, which will help determine whether federal law allows states and private parties to sue utility companies to force them to cap global warming emissions. It's a case that pits a group of utilities that together are the largest emitters of greenhouse gasses in the United States against eight states, the City of New York, and three private land trusts, which have banded together to argue that emissions constitute a public nuisance and must be controlled. If the Supreme Court sides with the polluters, it will significantly hamper the ability of citizens to hold corporations responsible for their contributions to global warming.

Although these cases, and several others on this term's docket, deal with different areas of the law, they really at their core are about the same thing: legal and economic power and who has it.

By the time these three cases are decided later this year we'll know better whether the unmistakable trend toward consolidating power in the hands of big corporations, and limiting access to legal remedies for everyday Americans, will continue. Given the transparent eagerness with which the conservative bloc of the Court took these cases, we fear the Corporate Court is still open for business.

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Click here for detailed and continually updated information on the Corporate Court and the key cases being heard this term. For a PDF summary of pending cases, click here.

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Read Nan Aron on Huffington Post