One of the most surprising developments during this new Supreme Court term is the relative absence of blockbuster cases that could provide corporate America with broad new immunities from laws protecting consumers and other ordinary Americans. To be sure, corporate immunity is far from absent from the Court’s docket — sub-prime credit card companies could gain the ability to force their consumers into corporate-run arbitration, for example — but there is nothing like the mortal blow that the Court dealt to consumers class action lawsuits last term.
At a conference last August, Justice Anthony Kennedy offered this explanation for why this could be:
“The docket seems to be changing,” Justice Anthony M. Kennedy told reporters at a judicial conference in August.
“A lot of big civil cases are going to arbitration,” he said. “I don’t see as many of the big civil cases.”
Of course, Justice Kennedy deserves much of the blame for the fact that so many big cases are going to privatized arbitration rather than real courts. Kennedy wrote the Supreme Court’s decision in Circuit City v. Adams, which held that corporations can force victims of workplace discrimination into corporate-run arbitration. He cast the key fifth vote in Rent-a-Center v. Jackson, which stripped individuals of their ability to challenge in court many of the most abusive contracts that force people into privatized arbitration. And he also cast the key vote holding that federal arbitration law allows corporations to strip ordinary Americans of their ability to join together and fight widespread corporate abuses through a class action lawsuit.
Indeed, Justice Kennedy and his four conservative colleagues’ efforts to kick ordinary Americans out of court have been so widespread and so successful that corporate America appears to be running out of new favors it can ask from the nation’s most powerful Court.