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The Supreme Court Term in Review

Part 2- Cases and Trends- Civil Rights

“They are the most conservative Court since 1937.” “They are very pro-business.” “They are out to roll back affirmative action and civil rights and expand the role of religion in America.” “The Court is cutting the rights of the accused in criminal cases.” Read any mainstream media article and one will find some of these accusations against the Roberts Court. Maybe they are in the final analysis and we can write this about the Roberts Court, but it is still too early to tell if any of these things (incidentally, not bad in and of themselves) come to fruition. Considering that Roberts is only 58, barring any unforeseen tragedy, John Roberts is in the unique position to put his stamp on the Court and will likely be around for another twenty years as Chief Justice.

When cases are taken, it generally takes four Justices to grant the petition. Given the number of petitions entertained by the Court in any term versus the number of cases actually taken, one’s chances of having your case heard by the Supreme Court are extremely low. There are three ways to definitely get a case heard. First, obviously there is original jurisdiction where the Court plays referee between two states. Second, if there is a large disagreement between Circuit Courts of Appeal over a certain statutory or constitutional issue, then the Court will step in to remove that ambiguity and provide some national consistency. Third, the “problem” must be unique and never addressed before by the Court. One example of this matter category is the increasing number of cases involving advancing technology. When the Constitution and the Bill of Rights were enacted, no one could foresee blood tests, DNA testing, genetically modified seeds, Internet sales, GPS tracking devices and the like. Yet, they are the reality today and our Constitution written so many years ago must apply to these realities. Because it is based on principles deeper than the mere words written, it makes the job easier.

The Chief Justice is but one voice and vote when cases are considered. Often cases are dismissed in light of a recent case decided and sent back to the lower court with those instructions. Sometimes, petitions are held over because a similar case may be pending a decision before the Court. More often than not, petitions are denied without any comment leaving the lower court decision to stand. This is usually because the Court feels the lower court did not err, or that the petition presents no unique question of constitutional law and there is no Circuit disagreement. Simply, the reasons for refusal of a petition are generally unknown.

This past term, of the 73 cases decided, 23 involved the United States, one of its agencies, or one of its officers specifically. In those cases, the government prevailed in only six instances. There were also 23 cases involving state governments, state officers, or state political subdivisions. In those cases, the state prevailed 11 times and lost 12 times.

Does this mean the Court is more receptive to state governments than the federal government? The case of Adoptive Couple vs. Baby Child is indicative of the reasoning of the Court in recent cases with regards to statutory interpretation. This case pitted a state court ruling- an adoption out of South Carolina- against a federal law- the Indian Child Welfare Act (ICWA). That law sought to keep Indian families and tribes intact and was in response to the adoption of Indian children where they were removed from their tribes. The Court, in a 5-4 decision written by Alito, reasoned that in this particular case, the state level agencies and courts had determined that the father had no parental rights to the child in question other than his biological link. He did not support in any way the child or his pregnant girlfriend. In fact, two years later he initiated custody proceedings under the ICWA. Alito reasoned that Congress did not intend to keep Indian families intact when a biological mother or father who happened to be Indian showed no interest- financial or otherwise- in that child. Thus, this was a victory for the lower state courts. In other words, states were in a better position to determine child custody battles notwithstanding the ICWA. In this case, the federal government argued for the supremacy of the federal law and lost.

Conversely, you have another case- not controversial in that the decision was 7-2- where a federal law preempted a state law in another area- Arizona vs. Inter-Tribal Council of Arizona. This case revolved around whether the state of Arizona could require that voter registrants show proof of US citizenship before voting. The federal courts intervened and blocked the law arguing that it violated the Motor Voter Act. That law prescribed a general federal form for voting registration which states basically copied. Arizona went one step further and required proof of citizenship. Although this would appear to be a smack down of Arizona, in fact Scalia’s majority opinion left options open to Arizona to essentially get their way. For example, they could petition the federal government to get that requirement on the form as a state-specific item and, if refused, they could appeal that decision under another law- the Federal Arbitration Act. Although seemingly a loss for the state and a win for the federal government, the question is actually left open especially if Arizona complies with the “suggestions” and is ultimately refused nevertheless.

Likewise, in the Fisher affirmative action decision where somehow the Court was steered towards a rather strong 7-1 decision (one of those RARE cases where Sotomayor disagreed with Ginsburg; Kagan took no part in the case), the Court ruled that the state’s program was constitutionally flawed. In effect, they dictated the correct standard of review to the lower courts. Many on the left interpreted this decision as dismantling affirmative action in college admissions. Nothing could be further from the truth. The gist of the decision was that the 5th Circuit erred in affirming the District Court which erred by applying the wrong standard of review and granting summary judgment in the university’s favor. This case was remanded and is very much alive and it is likely that Fisher will prevail since the state’s policy is now held to a higher standard of review. They must now prove that they can achieve racial diversity in college admissions only through the program at issue and there are no other viable alternatives in order to prevail. That will be a tall order. Thus, although they did not roll back affirmative action, they made it much more difficult for college’s to justify their policies.

Similarly, the Court did not eliminate or gut the Voting Rights Act of 1965 in the Shelby County decision. They merely struck down the formula used for determining covered jurisdictions in Section 4 of that act specifically arguing that the formula was applicable to the South in 1964 or 1972, not 2013. Congress had the opportunity to change that formula in 2005 and in 2010, in Northwest Austin, the Court signaled Congress that the formula needed to be revamped. In that decision, the formula was not at issue specifically, so they did not use that case as a vehicle to strike down Section 4. But if you read most mainstream articles on this case, one would think that the Court handed the Ku Klux Klan itself a victory. Actually, this decision has more important practical implications nationally in the long run than the gay marriage cases. Since Section 4 is no longer applicable, automatic coverage under Section 5 where every little electoral change has to be pre-approved by the federal government is now moot. Instead, the government can move in specific increments to block state level actions rather than seek blanket injunctions simply because the change happened in Alabama or any other previously covered jurisdictions. In other words, when it comes to alleged violations of the VRA, the Justice Department has to pick its battles more specifically and closely rather than having that preconceived assumption of guilt and racism to rely upon.

In other decisions involving Title VII of the Civil Rights Act involving workplace discrimination, the Court released two opinions- Vance vs. Ball State University and UTSMC vs. Nasser. The Vance case involved the definition of “supervisor” for claims of discrimination under Title VII. Generally, employers are liable if one of their supervisors engages in discriminatory behavior against an employee because of their race, sex, religion, etc. If an employee makes a complaint and that complaint is found to be justified, then the supervisor and the employer can be held jointly liable. However, in recent decisions, the Court has somewhat shielded employers from liability. They are obviously liable if their policies show a pattern of discrimination. A perfect example would be a workforce evenly divided between blacks and whites, but there are only white management level employees. Statistical evidence to prove patterns of discrimination has never been disallowed. Despite this shield, employers can still be held liable if there is a complaint against a specific employee and the employer does nothing about it. Obviously, if there is negligence in investigation or plain ignorance of the complaint, the employer should be held liable. The Vance case involved what exactly is a “supervisor?” In a 5-4 decision split along ideological lines, Alito (again) wrote that a supervisor must have substantial power over the employee’s workplace and the ability to substantially affect the employee’s status. If the supervisor has the power to hire, fire, or substantially change the status of an employee through transfers or changing job duties with major benefit implications, then they are a “supervisor.” If a supervisor is not substantially involved in or has a say in these things, they are not necessarily a supervisor for Title VII liability. For example, a supervisor changing a person’s hours without affecting their pay or benefits based on business needs is not a “supervisor” in this context.

The Nasser case involved alleged workplace retaliation for a Title VII complaint of discrimination. Here, Nasser complained that they were denied permanent work because of a discrimination complaint against the medical center. The employer argued that regardless of retaliatory intent, they would not have hired Nasser anyway for other reasons. Basically, the Court sided with the employer in this case and said that an employee must prove that race was the only motivating factor in denying employment. In short, it clearly makes it more difficult for employees claiming retaliation. Naturally, civil rights groups railed against these decisions, as well as Shelby County, as indicative of a racist Court rolling back civil rights laws that advanced that cause over the years.

In the case of Nasser, the decision by Kennedy was based on a 1991 revamping of the Civil Rights Act in response to then-recent Supreme Court decisions. As Kennedy explained in the majority decision, Congress could have, but did not, exclude the traditional tort standards for claimants to prevail against employers in retaliation complaints. Hence, he relied specifically on the statutory language of those 1991 amendments to the law. Therefore, the proper vehicle for addressing these issues- that is, make them more clear- is to change the statutory language through the legislative process. Believe it or not, the Supreme Court has no qualms against Congress over-riding their decisions in cases of statutory interpretation. In fact, they welcome it, as Northwest Austin and Ledbetter attest. So, this is no roll back of civil right laws in America, but a call to Congress to clarify intent and action. Likewise, in the Shelby County case, the Court was careful to note that Section 5- the actual enforcement provisions- would likely stand scrutiny IF the criteria to determine covered jurisdictions was simply updated and based upon reality now, not the reality of 1965. Whether Congress has the stomach and the will to take up civil rights legislation now considering everything else on the plate is another question. Of course, people like Patrick Leahy (D-VT) will propose legislation and probably hold hearings and such (expect a small parade of exceptions to the rule to cry before the cameras).

There is one other human rights case that needs to be discussed and that is Kiobel vs. Royal Dutch Petroleum, a case actually held over and re-argued from the 2011-12 term. In this case, Kiobel, a Nigerian national granted asylum in the US, sued the company for their policy in conjunction with the Nigerian government. In order to obtain property rights to lands held by Nigerians which oil companies wished to exploit, the Nigerian government embarked on what can best be described as a reign of terror to displace people from those lands. There is no doubt from the record that serious human rights violations took place. In a strange 9-0 decision, where the apparent agreement was no agreement at all, the Court essentially ruled that the United States and especially American courts cannot be used as the moral custodian of the world. The Court stated that in this particular case, where there was a functioning, yet morally bankrupt government, the reach of US courts ended at American shores. There was no Constitutional issue at stake; it involved the statutory interpretation of a law passed in 1789- the Alien Torts Statute. That law opened the courts to any foreign national claiming a violation of international law or any US treaty. The question in Kiobel was how far the arm of the courts reached. Writing for the majority, Roberts came up considerably short of a blanket approval of all cases arguing that court interference had serious ramifications on diplomacy, in shielding US citizens in other countries from similar actions and to keep US courts from being the moral voice of the world and interfering in the domestic policies of foreign countries. However, the final paragraph left open the possibility of other suits if the actions in foreign countries could have an effect on US soil, but that effect would have to be of “sufficient force” to proceed. Breyer, in a concurring opinion joined by the Female Troika, argued that cases could be brought in US courts where the foreign behavior involved a foreign national living in the US, the wrongdoer was an American or based in the US, AND it ran counter to US national interests. Using these tests, they concluded that Kiobel could not prevail in this particular case. In effect, they laid down a standard then became the trier of fact. Alito and Thomas argued for a blanket ban on application of the law for actions on foreign soil. Kennedy, writing for himself, wondered about future litigation in this area given the last paragraph of the Roberts decision.

From 1789 until the 1980s, the Alien Torts Statute was seldom used. However, beginning in the 1980s (damn you, Jimmy Carter), human rights groups began using this law to a greater degree. Scholars have generally been of the opinion that the law was passed as part of the Judiciary Act of 1789 to ensure foreign diplomats that they would be protected under American law and that any alleged torts against them could be heard in US courts. This makes sense since in 1789, foreign governments were leery of the newly independent United States. Thus, one would assume that the law stretched only as far as American shores. Still, American corporations like Yahoo! and Coca-Cola have been sued under this law for alleged violations of human rights either directly or by complicity on foreign soil. Based strictly on the Roberts opinion, the status of those cases is now muddled at worst and moot at best. But, an accusation that the Court has granted Americans or American corporations wanton disregard of human rights in foreign countries goes way to far as the door, although closed considerably, is still open to these claims.

The gay marriage cases were discussed previously and in detail by this writer.

Next: property rights, business, and environmental law. Part 4 will deal with criminal law and part 5 with cases taken for next term thus far.

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