Recent Supreme Court Decisions Favor Businesses over Consumers, Employees
A recent Minnesota Law Review article studied 2,000 Supreme Court decisions from 1946 to 2011, and confirmed that the current Supreme Court is, by a wide margin, the most business-friendly Court during the time period. All five of the Court’s conservative-leaning judges (John Roberts, Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Samuel Alito) rank among the top 10 most pro-business Justices in the last 65 years, with Roberts and Alito at the top of the rankings. Not surprisingly, as discussed by Adam Liptak in the New York Times, this empowerment of big business often comes at the expense of consumers and employers.
Recent Supreme Court decisions have granted big business never-before-seen political influence, while simultaneously insulating them from liability by limiting access to courts and disfavoring class actions. In Citizens United v. Federal Election Commission, the Supreme Court interpreted the First Amendment to allow corporations to spend freely in political elections, which led to unprecedented spending in the 2012 election.
However, recent decisions that have not received as much mainstream attention are likely to have an equally significant impact on big business. Through its decisions in Wal-Mart v. Dukes, AT&T Mobility v. Concepcion, and Comcast Corp. v. Behrend, the Court has made it increasing difficult for consumers and employees to bring class action lawsuits when they believe they have been harmed by one of these big corporations. Wal-Mart and Comcast both placed heightened, fact-intensive requirements on establishing that employees or consumers were sufficiently “similarly situated” to be certified as a class. Meanwhile, AT&T Mobility arguably allows companies to block class actions before they start by strong-arming employees and consumers into signing arbitration agreements, which require them to vindicate their alleged harms through individual arbitrations instead of as a class.
Unfortunately, because class actions are among the only ways to vindicate small harms that have befallen many people, this often means that the harmed individuals have no recourse at all. Companies that charge illegal sales taxes, as alleged in AT&T Mobility, or collude to violate anti-trust laws, as alleged in Comcast, are causing relatively small harms to thousands of people. By requiring more and more of these individuals to pursue their claims on their own, instead of as part of a class, the Supreme Court is allowing big businesses to violate the law without a real threat to their bottom line. As Arthur R. Miller, law professor at New York University wrote in his Reflections on Civil Procedure: “Realistically, the choice for class members is between collective access to the judicial system or no access at all.”