Human Rights

4 Recent Supreme Court Rulings Show Which Way the Wind Is Blowing: Corporations Are Getting Whatever They Want

Corporate America is winning and changing the way future judges can rule.

They are not the Supreme Court’s highly anticipated rulings on same-sex marriage, voting rights and affirmative action, but the last week has seen a string of alarming decisions that strengthen the corporate assault on ordinary Americans, primarily by restricting American’s access to jury trials or making it harder to win in court.

Consider these four recent Supreme Court decisions where the Court’s right-wing majority is denying justice or raising legal standards of proof to prevail. These cases underscore how federal court rulings—not just big money in campaigns and lobbying—are part of corporate America’s playbook.

1. Arbritration yes, trial by jury no! In American Express Co. v. Italian Colors Restaurant, the Court majority held that signing a contract with an arbitration agreement precludes the right to a jury trial. This case involved a restaurant chain that didn’t want to pay American Express’ high fees for a services it didn’t use, but had signed a contract. The Court took AmEx’s side, saying a "bad" contract is still a contract, pushing more individuals and small businesses outside the legal system. That ongoing trend favors corporate power, as individuals and small businesses lose access to lawsuits.

2. Generic drug takers can’t sue? In this complex case decided Monday, the Court ruled that if you are taking a generic medication lacking warning labels and you have a bad reaction, you can’t sue the generic drug maker. “If you were prescribed the brand-name drug’s generic copy—which public policy has favored for three decadess—your suit against the generic manufacturer is kaput. Got that?” wrote Brian Wolfman, on Public Citizen’s Consumer Law and Policy blog. “Another loss for injured consumers' access to the courts.

3. Co-worker harassment—forget suing! In an employment case also decided Monday, the Court’s right-wing majority held that an employee cannot sue her employer if she's harassed at work by a co-worker. Instead, she can only sue the employer if the hostility is created by a supervisor—which is not the same as a bossy and harassing colleague.

“Until today, our decisions have assumed that employees who direct subordinates’ daily work are supervisors,” wrote Justice Ruth Bader Ginsburg in a dissent that was signed by three other more moderate justices. “This realignment will leave many harassment victims without an effective remedy.”

4. Racial harassment at work—prove it! In another workplace retaliation case decided Monday, an Arabic doctor who claimed that his new supervisor at a Texas medical center was racially prejudiced and forced him to quit, saw his civil rights lawsuit sent back to a lower court with new and tougher instructions for proving racial discrimination.

That fact that the new supervisor was heard saying, “Middle Easterners are lazy,” among other things, was not specific enough to allow the Arabic doctor to sue and win in lower federal court. Instead, the Court’s conservative majority said the physician had to prove his claim more specifically.

The Court’s minority, led by Ginsburg, wrote that real life isn’t always so specific.

“This point, lost on the Court, was not lost on Congress. When Title VII was enacted, Congress considered and rejected an amendment that would have placed the word “solely” before “because of [the complainant’s] race, color, religion, sex, or national origin.” …Senator Case, a prime sponsor of Title VII, commented that a “sole cause” standard would render the Act “totally nugatory.” Life does not shape up that way, the Senator suggested, comment­ing “[i]f anyone ever had an action that was motivated by a single cause, he is a different kind of animal from any I know of.”

Not Just Pro-Business Decisions

These decisions are not merely big days for "big business" at the nation’s highest court. Corporate America is winning not just on the particulars of individual disputes, but also by changing the rules in ways that limits an individual's access to courts to seek justice, and by making it harder to win by raising the standard of proof.

The other big ruling on Monday saw this same pattern. In a Texas university admissions affirmative action case, the Court’s right-wing majority not only sent the lawsuit back for a new trial, but also toughened the legal threshold that will evaluate whether race is a legitimate factor in university admissions.

Corporate America’s power and influence doesn’t just come from big-money campaign donations and lobbying campaigns. It also flows through the federal judiciary, which is why the U.S. Senate’s Republicans have prevented most of the White House’s judicial nominees from being seated—even though Obama’s nominees are predominantly centrist.

Take a look at Justice Ginsburg’s forceful dissents in most of these cases. They show what a far more reasonable judiciary could be like if there were more judges with civil rights backgrounds. But especially with the Supreme Court's 5-4 right-wing majority on a great many cases, the assault by big business and large corporations on ordinary people continues. 

Steven Rosenfeld is a senior writing fellow of the Independent Media Institute, where he covers national political issues. He is the author of several books on elections, most recently Democracy Betrayed: How Superdelegates, Redistricting, Party Insiders, and the Electoral College Rigged the 2016 Election (March 2018, Hot Books).