In the nation’s highest court, corporations are winning immunity from lawsuits at a higher rate than ever, in part because they can invest tremendous sums in litigation. But in many state high courts, corporations have yet another tool in their arsenal to rig the game in their favor: spending on state judicial elections. And as spending on judicial elections continues to break new records nationwide, those six state supreme courts that have seen the most money pour into their judicial elections since 2002 — Texas, Alabama, Michigan, Ohio, Pennsylvania, and Illinois – saw individuals losing to corporate defendants in the overwhelming majority of the cases, according to a new Center for American Progress report. These states are seeing average win rates of 70 percent for corporate defendants, and this rate does not even account for the countless individuals who never sue to begin with, because both the laws of the state and the orientation of the judges pummel their chances at success. Report author Billy Corriher explains:

One Texas plaintiff, Connie Spears of San Antonio, ran up against the state’s stringent medical-malpractice laws when she sought to hold a hospital accountable for failing to diagnose a blood clot, a problem she had previously experienced. The delay in discovering the clot led to the amputation of both of her legs. It took years for her to find a lawyer willing to take the case, due to Texas’ defendant-friendly laws, and once she did, she could not find an expert witness who met the state’s standards. Spears says that negligent medical care has impacted her family and “ruined all of our lives,” but she could not hold anyone accountable in Texas.

Even in in those cases in which the evidence is so overwhelming that lawyers believe they may be able to overcome the onerous legal standards set by courts and legislatures, individuals have lost over and over. In Ohio, a plant worker whose leg was crushed and pelvis fractured after he was pinned against an electric powered fork lift could not overcome the state legal requirement that corporations have “deliberate intent” to injure the employee, in spite of rampant evidence of willful negligence. In fact, Bruce Houdek’s manager had explicitly told the forklift drivers not to avoid aisles where employees were driving fork lifts and labeling inventory. He lost his case for damages 6-1.

When individuals do win, stringent damage caps preclude awards that compensate to the full extent of the loss. In Texas, a family who said their son’s skull was crushed during birth and suffered severe brain damage recovered the maximum award of $500,000 – an amount eaten up by medical bills in just the first three weeks of his life. The boy’s father was a small business owner, and had been a public supporter of damage caps until he experienced what that meant for him. He is now an outspoken opponent of damage caps. Texas, which has recently seen one of the highest corporate win rates of 85 percent, saw a deluge of corporate money in the mid-1990s after a court ruling invalidated a state damages cap. Thanks both to elections spending and political lobbying for so-called “tort reform,” the state now has some of the strictest limits on liability for negligent health care providers. And in a sign that this insulation from liability really does affect corporate accountability, Texas now also holds the title of number one in workplace fatalities, and has more than three times the number of accidents, and four times the number of injuries and deaths as the second-ranking state, Illinois.

The U.S. Supreme Court ruled unanimously in favor of Monsanto Monday, in a major challenge to the biotech giant’s dominant market share over soybeans. Justice Elena Kagan held in a narrow ruling that farmer Victor “Hugh” Bowman violated Monsanto’s patent over its pervasive herbicide-resistant soybeans when it utilized the common practice of saving seeds from a first growing season and replanting them for a second, without paying Monsanto for the use of its technology every year. Monsanto’s “Roundup Ready” seeds are used to grow about 90 percent of the nation’s soybean crop, and food safety experts say the vigorous patent enforcement has led to skyrocketing seed prices and less innovation by smaller firms.

The ruling is the latest by the particularly business-friendly Roberts Court to side with a major corporation over an individual or small business. (Another decision issued today sided with an individual suing a local towing company.) Unlike many of the court’s recent corporate-friendly rulings, however, this case was decided narrowly and unanimously, with Justice Kagan noting, “Our holding today is limited — addressing the situation before us, rather than every one involving a self-replicating product. We recognize that such inventions are becoming ever more prevalent, complex, and diverse.”

In one of the blockbuster cases of this term, the U.S. Supreme Court seems poised to strike down the mechanism for ensuring diversity at colleges and universities, reasoning that the need for affirmative action has run its course. But if the high court itself is any indication, racial diversity hasn’t changed much at all. Over the course of the court’s 2012-2013 term, just one black lawyer argued before the court. The Associated Press reports:

In roughly 75 hours of arguments at the Supreme Court since October, only one African-American lawyer appeared before the justices, and for just over 11 minutes.

The numbers were marginally better for Hispanic lawyers. Four of them argued for a total of 1 hour, 45 minutes.

Women were better represented, accounting for just over 17 percent of the arguments before the justices.

In an era when three women, a Hispanic and an African-American sit on the court and white men constitute a bare majority of the nine justices, the court is more diverse than the lawyers who argue before it.

The arguments that took place from October to April were presented overwhelmingly by white men. Women and minority lawyers whose clients’ cases were heard by the court were far more likely to represent governments or be part of public-interest law firms than in private practice, where paychecks are much larger.

As the article points out, women and minorities have made very limited headway in climbing the ranks at large private law firms, where recent surveys show that 93 percent of partners remain white, and nearly 80 percent are men. But when it comes to Supreme Court litigators, many of these lawyers come from government jobs at the Department of Justice, whose Supreme Court litigation divisions are also largely dominated by white men. Diversity is also even lower than it has been because the high court is accepting less social justice cases in which minority lawyers are well represented. The one African American who did argue before the high court was Debo Adegbile, a former NAACP Legal Defense lawyer who disputed the challenge to the Voting Rights Act.

Limited diversity at the highest levels of the legal profession is a persistent problem that extends outside the courtroom. But inside the courtroom, diversity plays a separate and important role in representing the experiences of Americans, most of whom will never set foot inside the high court, and thus will never see an argument so long as cameras are prohibited in the courtroom. Like the contributions of diverse justices, who have weighed in on social justice cases with important perspectives on discrimination, a diverse lawyer’s contributions are just as substantive as they are symbolic. As Justice Byron White said in a tribute to the late Thurgood Marshall, he “would tell us things that we knew and would rather forget; and he told us much that we did not know due to limits in our experience.”

 

The Louisiana Supreme Court has affirmed a lower court judgment that the state’s school voucher program is unconstitutional because of program funding that diverts money for public schools into the private voucher system. The Times-Picayune reports:

Act 2, part of Gov. Bobby Jindal’s 2012 package of education reforms, diverts money from each student’s per-pupil allocation to cover the cost of private or parochial school tuition. The act authorizes both the Louisiana Scholarship Program and the new Course Choice program.

The vote was 6-1, with Justice Greg Guidry dissenting. The plaintiffs in the case include the Louisiana Association of Educators, the Louisiana Federation of Teachers and the Louisiana School Boards Association.

The ruling states that the per-pupil allocation, called the minimum foundation program or MFP, must go to public schools. Justice John Weimer writes, “The state funds approved through the unique MFP process cannot be diverted to nonpublic schools or other nonpublic course providers according to the clear, specific and unambiguous language of the constitution.”

Furthermore, the court found that the instrument Jindal used to pass the MFP for the 2012-13 school year violated proper procedure and was therefore void from the start.

Instead of passing a law, the Legislature appropriated the MFP funds by passing a resolution, SCR 99. However, that resolution “was intended to have the effect of law,” according to the court, and it was filed after the deadline for introducing new bills, rendering it invalid. This part of the Supreme Court decision overturns the judgment made in Baton Rouge district court in November.

Within hours of the decision, Jindal responded with a statement saying he would find another way to fund a voucher program “through the budget,” although it is not clear how he will do so without violating the holding, unless he passes a voucher law.

While this ruling made clear that it is not weighing in on the merits of the program, a federal district court recently suspended the voucher program in one district over concerns that it was interfering with desegregation. Several recent studies have found that voucher programs are an ineffective way to improve student performance, draining funds and diversity from public programs, without improving the performance of even those attending the voucher schools.

Warning labels and notices are a common feature of American life. Federal law requires most groceries to display detailed information about their ingredients, calorie content, and other nutritional facts. Federal fuel economy labels inform car buyers how quickly their new vehicle will burn through gas. Surgeon general warnings inform smokers of the dangers presented by tobacco. Employers who employ workers subject to federal minimum wage law must display posters informing these workers of their rights.

And yet, under a decision handed down today by three Republican judges, all of these information labels and more are now in jeopardy.

The decision by a panel of the conservative United States Court of Appeals for the District of Columbia Circuit strikes down federal regulations requiring employers to display posters informing workers of their right to organize and other rights under federal labor law. Although the opinion meanders quite a bit, its analysis begins by claiming this result is required by a federal statute protecting employers’ rights to express their views to their employees. That statute provides that “[t]he expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice . . . if such expression contains no threat of reprisal or force or promise of benefit.” Although this language says nothing about employers also having the right not to post information they would prefer to keep their workers ignorant of, the three Republican judges fabricate such a right through the power of a rhetorical question:

Suppose that § 8(c) prevents the Board from charging an employer with an unfair labor practice for posting a notice advising employees of their right not to join a union. Of course § 8(c) clearly does this. How then can it be an unfair labor practice for an employer to refuse to post a government notice informing employees of their right to unionize (or to refuse to)? Like the freedom of speech guaranteed in the First Amendment, § 8(c) necessarily protects—as against the Board—the right of employers (and unions) not to speak. This is why, for example, a company official giving a noncoercive speech to employees describing the disadvantages of unionization does not commit an unfair labor practice if, in his speech, the official neglects to mention the advantages of having a union.

Of course, the easy answer to this rhetorical question is that it can be illegal to punish employers who express their view of unions but not illegal to require employers to inform workers of their rights because that’s what the law says. Typically, judges begin their legal analysis with the language of the law. These Republican judges chose a different path.

Perhaps sensing that their reading of federal law stands on shaky ground, the judges also weave a particularly aggressive reading of the First Amendment into their opinion. Under the Supreme Court’s decision in Zauderer v. Office of Disciplinary Counsel, commercial actors can be required to provide “purely factual and uncontroversial information” to the people they transact with. This is why cereal boxes can be required to display accurate information about the nutritional value of Rice Chex or Froot Loops, but businesses also cannot be forced to endorse a particular political candidate or to advise their workers to join a union. Because the new posters do nothing more than inform workers about uncontroversial facts involving their rights in the workplace, they should be no more invalid than labeling on a cereal box.

Although union-related speech is sometimes treated differently than speech involving sales of goods, the court does not question its applicability to labor decisions generally. Instead, the judges read Zauderer very narrowly — so narrowly that it does not apply unless the corporation required to display information appears poised to deceive their workers or consumers. Because no one “has even suggested that the posting rule was needed because employers are misleading employees about their rights under the National Labor Relations Act,” the court concludes that Zauderer does not apply. If taken seriously, this reasoning would threaten nearly all warning or informational labels required by law. There’s little evidence, for example, that General Mills is actively deceiving consumers about the number of calories in a serving of Count Chocula. Nor are Chevy dealers only required to post fuel efficiency labels if they lie to their customers about how quickly a Suburban burns through gasoline.

If nothing else, today’s decision should be a wake up call to unions and other advocates for workers that everything they care about is threatened so long as vacancies remain on powerful, GOP-dominated courts like the DC Circuit. Today’s decision bears the same resemblance to the law that Westeros bears to New Hampshire. It writes words that simply do not exist into a federal statute, and then fabricates a constitutional right to keep workers and consumers ignorant. The only way to prevent future decisions like this one is to confirm more judges who will do a better job of adhering to the law.

In recent years, several reports and studies have observed the evident skew in favor of business of the U.S. Supreme Court led by Chief Justice John G. Roberts. Thus far, this term has proved to be no exception, with a 6-1 win rate by the U.S. Chamber of Commerce. And last month, three professors who are prominent in the conservative law and economics movement published what may be the most rigorous study yet on business success before the high court. After analyzing the some 2,000 decisions between 1946 and 2011 under various rubrics for what constitutes a business win before the court, the study confirmed previous conclusions that the Roberts court is significantly more pro-business than its predecessors. What’s more, they found that the most pro-business justices of all since 1946 are George W. Bush’s two appointees to the court: Justice Roberts and Justice Samuel Alito:

As illustrated above, the study also found that five of the top ten justices most favorable to business are currently serving — and they make up the court’s conservative block. It is unsurprising, then, that this court is not only siding with business more, but that it is granting more cases in which lower courts decided against business and overturning those decisions in favor of business interests. The professors explain:

Whether measured by decisions or Justices’ votes, a plunge in warmth toward business during the 1960s (the heyday of the Warren Court) was quickly reversed; and the Roberts Court is much friendlier to business than either the Burger or Rehnquist Courts, which preceded it, were. The Court is taking more cases in which the business litigant lost in the lower court and reversing more of these—giving rise to the paradox that a decision in which certiorari is granted when the lower court decision was anti-business is more likely to be reversed than one in which the lower court decision was pro-business. The Roberts Court also has affirmed more cases in which business is the respondent than its predecessor Courts did.

As a New York Times report on the study notes, prominent among these pro-business decisions are landmark rulings that include the Citizens United decision, a string of decisions eroding the mechanisms for holding corporations accountable as a class, and this term’s Kiobel v. Royal Dutch Petroleum, which shredded accountability for human rights abuses abroad, including those by corporations with some U.S. presence.

Continuing a dramatic winning streak that has spanned the Roberts Court era, the Chamber of Commerce has won six of its seven Supreme Court cases decided thus far this term. In all, it filed amicus briefs in 18 cases this term, making the top corporate lobby a preeminent Supreme Court influencer. The Chamber also files numerous petitions at at the earlier stage when the Supreme Court is deciding which decisions to hear, shaping its docket such that the Chamber is poised to have participated in 24 percent of the Court’s decided cases this term, according to a new report from the Constitutional Accountability Center:

Over the past thirty years, the Chamber’s participation rate has increased six-fold, from 4% in the early 1980s to 24% today.

This dramatic increase in participation is a reflection, in part, of the Chamber’s success in shaping the Court’s docket. As SCOTUSblog reported in early April, the Chamber remains “the country’s preeminent petition-pusher,” as it filed the greatest number of amicus briefs at the cert. stage of any private organization during SCOTUSblog’s three-year study period (running from May 2009 to August 2012). Importantly, the Chamber also has the highest success rate of any of the ten most active organizations during this period – with the Court granting 32% of the Chamber’s cases overall. Therefore, the Chamber is not just participating in cases that the Court decides to hear, but it’s also aggressively and successfully working to shape the Court’s docket.

The Chamber’s win rate has also increased dramatically in the Roberts Court, illustrated in the chart below:

Among the Chamber’s wins thus far this term were two 5-4 decisions that eroded the class mechanisms for holding corporations accountable, and the major ruling on the Alien Tort Statute that slashed accountability in U.S. courts for human rights abuses abroad.

 

It is illegal for a person under the age of 21 to buy beer. Yet, a lawsuit filed by the National Rifle Association wants them to be able to buy a deadly machine that exists for the sole purpose of forcing a high-velocity slug of metal into another human being. Yesterday, one of the most conservative federal appeals courts in the country disagreed.

Two George W. Bush appointees to the United States Court of Appeals for the Fifth Circuit joined a unanimous revised opinion yesterday rejecting the NRA’s claim that 18 year-olds should be allowed to buy handguns from federally licensed firearm dealers. The opinion is complex and relies at least two alternative grounds for upholding the ban on gun sales to young people, but its discussion of how the founding generation would have treated this NRA’s absolutist view of gun rights is particularly significant:

The historical record shows that gun safety regulation was commonplace in the colonies, and around the time of the founding, a variety of gun safety regulations were on the books; these included safety laws regulating the storage of gun powder, laws keeping track of who in the community had guns, laws administering gun use in the context of militia service (including laws requiring militia members to attend “musters,” public gatherings where officials would inspect and account for guns), laws prohibiting the use of firearms on certain occasions and in certain places, and laws disarming certain groups and restricting sales to certain groups. It appears that when the fledgling republic adopted the Second Amendment, an expectation of sensible gun safety regulation was woven into the tapestry of the guarantee. . . .

Scholars have proposed that at the time of the founding, “the right to arms was inextricably and multifariously linked to that of civic virtu (i.e., the virtuous citizenry),” and that “[o]ne implication of this emphasis on the virtuous citizen is that the right to arms does not preclude laws disarming the unvirtuous citizens (i.e., criminals) or those who, like children or the mentally imbalanced, are deemed incapable of virtue.” This theory suggests that the Founders would have supported limiting or banning “the ownership of firearms by minors, felons, and the mentally impaired.” . . . . Notably, the term “minor” or “infant”—as those terms were historically understood—applied to persons under the age of 21, not only to persons under the age of 18.

The NRA will no doubt be distressed to learn that one of their biggest bugaboos — a government-run registry of firearm owners — was commonplace around the time of the founding. They will be even more dismayed to see it described in a judicial opinion strongly suggesting that such registries are constitutional. And this comes from a three-judge panel that includes two Bush-appointees.

Notably, the Fifth Circuit released an order today indicating that seven of the court’s 15 active judges voted to have the full court rehear the case. Had one more judge voted for such a rehearing, it would have taken place. Of these seven, only six actually indicated that they disagreed with the three-judge panel’s decision. The seventh judge, Obama appointee Stephen Higginson, was silent on whether he agreed with the panel’s decision. All six of the judges who called for gun regulation to be less strict than beer regulation were Republicans.

The NRA will no doubt appeal this decision to the Supreme Court, but the Fifth Circuit’s resolution of the case is a good sign that the justices will not strike down the ban on gun sales to young people. Beyond the fact that two Bush-appointees voted to uphold this law, the judges who called for it to be struck down include some of the most severely conservative judges in the country.

Judge Jerry Smith, for example, is the same judge who ordered a Justice Department attorney to write a letter he likely intended to use to embarrass President Obama. Judge Edith Clement sat on the board of a group that used to be one of the leading sponsors of corporate-friendly junkets for judges. And Judge Priscilla Owen once took thousands of dollars worth of campaign contributions from Enron when she sat on the Texas Supreme Court, and then wrote a key opinion reducing Enron’s taxes by $15 million.

The author of the pro-NRA opinion was Judge Edith Jones. Jones once told a liberal colleague to “shut up” during the middle of an oral argument, and she is one of the most frequent attendees of junkets for judges. Jones also wrote a dissenting opinion claiming that a woman who “was repeatedly propositioned, was groped and grabbed, [had] pornography [] placed in her locker, and [had] other employees broadcast[] obscene comments about her over the company’s public address system” did not experience sexual harassment.

So, while it is true that six judges did adopt the NRA’s view in this case, they are the kinds of judges who sit well to the right of even this Supreme Court.

Judge Jane Kelly, who was unanimously confirmed to the United States Court of Appeals for the Eighth Circuit yesterday, is among President Obama’s most outstanding nominees. She graduated from Harvard Law School, clerked for a U.S Court of Appeals judge, and then spent the rest of her career in public service working as a public defender. She’s also young. Young enough that she could be a potential Supreme Court nominee for at least two full presidential terms. In other words, she’s exactly the sort of nominee Senate Republicans love to filibuster — a brilliant attorney with a left-leaning resume who could someday be nominated to the Supreme Court of the United States.

As it turns out, however, obstructionism can be overcome if the right person writes a letter on your behalf to the highest ranking Republican on the Senate Judiciary Committee:

With [Sen. Chuck] Grassley in a University of Iowa Hospital bed, a Republican county chairman and small-town lawyer named David Hansen went out and campaigned for him, the senator explained at Kelly’s confirmation hearing in February. “And you know, you don’t find county chairman doing that that often in our state,” Grassley said. “I won that primary and won that election obviously, and he gets all the credit for it.”

Once in office, Grassley remembered the effort. Grassley says he twice suggested Hansen for federal bench positions: first to the U.S. District Court for the Northern District of Iowa during the Reagan administration and then to the Eighth Circuit during the George H.W. Bush administration. “He’s been a friend of mine as well,” Grassley said of Hansen, now an Eighth Circuit senior judge, on the Senate floor Wednesday.

The connection to Kelly’s nomination: She clerked in the Eighth Circuit for Hansen during 1992 and 1993. Hansen sent Grassley a hand-written note supporting Kelly, noting that she has an “exceptionally keen intellect” and “will be a welcome addition to the court if confirmed.”

Now, let’s be clear. It is fantastic news that Kelly is now a judge. Beyond the fact that she is talented and that she adds another name to the short list of potential Supreme Court nominees in a Democratic administration, former public defenders are very rare on the federal bench (by contrast, President Obama nominated 100 former prosecutors to be federal judges). Judge Kelly earned her seat on the U.S. Court of Appeals through hard work and solid legal work, and the fact that her former boss testified to her “exceptionally keen intellect” is just one more data point demonstrating that she belongs on the bench.

But a person shouldn’t have to be friends with a guy who is friends with Chuck Grassley in order to avoid a grueling confirmation process. Thanks in large part to Grassley’s intervention, Kelly was confirmed just 83 days after her nomination. The average even for uncontroversial Obama nominees is 272 days. And, of course, it remains likely that a person with Kelly’s credentials would have been filibustered if it were not for her former boss’ connection to Grassley — just as other, potential future Supreme Court nominees have been filibustered in the past.

Ultimately, however, the arbitrariness of Senate obstructionism does not have to remain a reality forever. Senate Democrats can eliminate this problem by changing the filibuster and “blue slip” rules that allow a minority of the Senate to block exceptionally qualified judicial nominees.

The Constitution forbids executing intellectually disabled people. As the Supreme Court explained in Atkins v. Virginia, using an unfortunate and antiquated term, “death is not a suitable punishment for a mentally retarded criminal.” Moreover, Georgia death row inmate Warren Lee Hill is intellectually. disabled. At least, that’s what all seven mental health professionals who evaluated Hill have said about him. Yet, thanks to a federal law enacted in large part for the purpose of making it easier for states to kill people, a federal appeals court held yesterday that Hill may be executed.

Courts previously deemed Hill’s death sentence valid based on the testimony of several experts who claimed he was not, in fact, intellectually disabled. Yet, as Judge Rosemary Barkett explains in a dissenting opinion, “all three experts who previously testified for the state of Georgia in 2000 that Hill did not meet the criteria for mental retardation have recently come forward and said they made a grievous mistake. They explained that their earlier conclusions were unreliable and that it is now their professional opinion that Hill is mentally retarded.” So Hill’s death sentence is rooted in unreliable evidence that has since been overcome by new information, and he asked the United States Court of Appeals for the Eleventh Circuit to overturn the death sentence that mentally health experts now unanimously agree is unconstitutional.

Except that there’s one big problem, a 1996 law known as the Antiterrorism and Effective Death Penalty Act (AEDPA) generally does not allow what are known as a “second or successive habeas corpus application,” meaning that a prisoner typically gets one chance to challenge their conviction or sentence in federal court, and that’s it. Prior to when the witnesses against him recanted their testimony, Hill sought a federal court order invalidating his death sentence on the grounds that he is intellectually disabled, and lost. And, while AEDPA does contain an exception for newly discovered information establishing a prisoner’s innocence, this exception does not allow a guilty person to challenge an unconstitutionally excessive sentence based on new evidence.

As Andrew Cohen explains, there are some aspects of the court’s analysis that are highly doubtful, even if the court ultimately reads AEDPA correctly to say that it more important to prevent someone from challenging their death sentence twice than it is to halt unconstitutional executions. Cohen also points to what may be the most stunning statement in the court’s majority opinion:

If all that was required to reassert years later a previously rejected claim was a change in testimony, every material witness would have the power to upset every notion of finality by simply changing his testimony. And, as this case illustrates, opinion testimony can be changed with great ease (indeed, even without seeing Hill in 13 years, administering any new tests, or reviewing new documents, three witnesses pivoted their positions 180 degrees). Moreover, there is no reason to limit the change in evidence theory to changes in testimony of previous witnesses. New witnesses could be rounded up, and every new witness would transform the same old claim into a brand new one (citations omitted by me).

The first sentence of this passage is simply breathtaking. Imagine, the court demands, how terrible the world would be if death sentences could be overruled just because the facts supporting those sentences turn out to be false!

At the end of the day, we can have a justice system that favors truth, or we can have a justice system that favors finality. AEDPA forces us to choose the later.