The Supreme Court’s majority: Undermining the rule of law with legal fictions
By Arthur Bryant, Executive Director
The U.S. Supreme Court is supposed to stand for — and symbolize — the rule of law in America. This term, however, the Court’s majority has undermined the rule of law. And it has repeatedly used legal fictions to do so.
Ironically, the term ended with Justice Scalia dissenting in United States v. Windsor, which declared the Defense of Marriage Act unconstitutional, and proclaiming: “This case … is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former.” His words aptly describe the effects of the decisions he and the Court’s usual five-member majority issued throughout the past year.
Black’s Law Dictionary defines “legal fiction” as, “Believing or assuming something not true is true.” It says legal fictions are, “Used in judicial reasoning for avoiding issues where a new situation comes up against the law, changing how the law is applied, but not changing the text of the law.” That’s how the Court’s majority has used them.
On Monday, for example, in Vance v. Ball State and University of Texas Southwestern Medical Center v. Nassar, two 5 to 4 decisions, the majority made it harder for employees to prove they were discriminated against on the basis of race, color, religion, sex and other characteristics in violation of Title VII of the Civil Rights Act of 1964. How? In Vance, the majority said that, contrary to the definition the federal government has used for a decade, someone who is “authorized to direct the employee’s daily work activities” is not a “supervisor.” (So companies aren’t liable when people like that discriminate.) In Nassar, the majority said that there was no “retaliation” on the basis of race, gender, or another prohibited characteristic if that characteristic was just a “motivating factor” for the employer’s action and not the “but for” — i.e., sole or determining — reason for it. Two legal fictions.
Similarly, in Mutual Pharmaceutical Co. v. Bartlett, the majority held that a horrifically injured woman could not sue a generic drug manufacturer for defectively designing the drug that caused her injuries — which was far more likely to cause them than other similar drugs — because it was “impossible” for the manufacturer to comply with both federal law and the New Hampshire law on which the woman’s suit was based. As a result, the state law was preempted and void. The federal law prohibits generic drug manufacturers from changing their label. The New Hampshire law requires manufacturers of “unreasonably dangerous” products to compensate the people they injure. Impossible to comply with both? Please. Legal fiction.
On Tuesday, in Shelby County v. Holder, the Court, as Forbes magazine described it, “cut out the heart and soul of the Voting Rights of 1965.” Why? Because in 2006, when Congress reauthorized the Voting Rights Act, it did not recognize (as the majority does) that discrimination is no longer the problem it was in the state and local governments required to get prior approval from the U.S. Justice Department for changes in their voting procedures that could disenfranchise minorities. If it had, it would have realized (as the majority does) that requiring preclearance for those governments was unconstitutional without newer data — even though, for example, there were more Justice Department objections to proposed voting law changes by these governments between 1982 and 2004 (yes, including Reagan and Bush I and II years) than there were between 1965 and 1982. Again, legal fiction.
And that’s just the decisions this week. Last week, in American Express Co. v. Italian Colors Restaurant, the majority held that corporations could use mandatory arbitration clauses to force their customers out of court and into individual arbitration (and ban class actions in both), even if that meant the companies could steal billions (yes, billions) from their customers and walk away with the money. Why? Two legal fictions: The customers, the majority said, agreed to these terms. And the ability to pursue rights in arbitration is what matters, not the ability to enforce them.
The same “agreement” legal fiction was the basis for U.S. Airways v. McCutchen, where the Court held that ERISA insurance plans had to be enforced as written by the insurer — even if they left injured employees worse off for obtaining compensation from the people who injured them or their own uninsured motorist coverage than if they got no compensation at all. The employees agreed to this, the Court declared, even though the employees never saw the ERISA plan. (In fact, they could not even get it after they sued, until the Solicitor General intervened.) They just went to work and got a “summary plan description” (which did not accurately describe the plan).
I could go on, but why belabor the point? The majority is undermining the rule of law, rolling back and gutting extraordinarily important federal and state laws — substantive and procedural — that have protected people from government and corporate abuses for decades. In a way, the majority seems dedicated to refighting the battles of the sixties. Just look at what it is going after: Title VII of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and, among other things, in a barrage of decisions I have only touched on, class actions — which the 1966 amendments to the Federal Rules of Civil Procedure launched in their modern form.
It is doing so, moreover, not by being straight, but, rather through transparent legal fictions — assertions that almost everyone knows are not true. (Like the majority’s assertions in Citizen United that corporations are the same as people for First Amendment election financing purposes; “that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption” in politics; and that the “the appearance of influence or access” by corporations “will not cause the electorate to lose faith in our democracy.”)
The majority’s resort to such fictions decreases respect for the Court and further undermines the rule of law.
Finally, the majority is undermining the rule of law by precluding more and more people from even trying to use the courts to enforce the law. Advanced by the majority’s rulings, federal preemption, mandatory arbitration and class action bans are now closing the courthouse doors to millions. The perception of a Corporate Court is growing as consumers, workers and others who believe they have been injured, cheated or discriminated against by corporations discover that the majority’s decisions have precluded their day in court — and any chance at justice at all.
The U.S. Supreme Court, remember, is supposed to stand for — and symbolize — the rule of law. The words on its mantle summarize what that means: equal justice under the law. If access to any justice — much less equal justice — is denied, the rule of law cannot survive.
That’s no legal fiction. It’s fact.