Beyond Sotomayor’s Confirmation

Justice Sonia Sotomayor’s uniquely American story is a window into the nation we aspire to be. She was born into abject poverty in a Bronx housing project and is now the first Latina to sit on the U.S. Supreme Court. Her story is proof that birth need not be destiny and that any American can aspire to the heights that she—and the president who appointed her—have achieved. Yet while there’s every indication that Sotomayor will be an excellent justice, the sad reality is that at least for the near future her best work will be done in dissent. Indeed, Justice Sotomayor joins a Court dominated by a conservative majority that consistently places the profits of well-heeled interests ahead of the law.

Consider the Court’s recent decision in Gross v. FBL Financial Services, which eliminated many workers’ ability to prove that they were victims of age discrimination. Gross is a tremendous blow to older workers, but it is also emblematic of the victory-at-all costs approach embraced by the Roberts majority.

The Supreme Court’s normal practice is to inform both parties in advance what questions it will consider in a pending case. This lets the attorneys know what topics they should discuss in their briefs, and it warns Court watchers which cases could have a significant impact on the issues they care about.

No one, however, flagged Gross as a major decision to watch this year because the justices initially said that they would only consider a very narrow question regarding the burden of proof in certain discrimination claims. It wasn’t until the minute Gross was handed down that older workers learned they were victims of a bait and switch. Gross decided a question that wasn’t even briefed by the plaintiff’s attorney, so advocates for older Americans never even had the opportunity to make their case to the high Court.

Worse, Gross ignored a 20-year precedent protecting the right of all Americans to be free from discrimination in the workplace. When Justice John Paul Stevens called out the majority’s “utter disregard for our precedent” in dissent, Justice Clarence Thomas was quite candid in explaining why he suddenly felt free to disregard well-established precedent: “It is far from clear that the Court would have the same approach were it to consider the question today in the first instance.”

Translation: The right wing controls the Court now, so we’ll do whatever we want.

Commendably, many members of Congress are already taking steps to overturn Gross—as they overruled the Court’s embarrassing Ledbetter decision earlier this year—but this one step will do little to chip away at decades of decisions placing corporate interests before the law.

Every justice appointed during the Nixon, Carter, Reagan, Clinton, and both Bush administrations was more conservative than the person they replaced—with the possible exception of Justice Ruth Bader Ginsburg. In the same 40-year period, conservatives controlled the White House or at least one house of Congress for all but six years. Thus, as the judiciary lurched to the right, the new justices’ co-ideologues held an effective veto power over laws that would overturn the increasingly conservative Court’s decisions.

The outcome has been a nearly unchecked assault on laws Congress passed to protect ordinary Americans. In many cases, the justices have indeed twisted progressive legislation into unprecedented grants of immunity to powerful interests.

In the 1970s, for example, a contraceptive device known as the Dalkon Shield caused numerous infections and deaths. Congress responded by requiring the FDA to approve new medical devices. But even though Congress enacted this law to protect consumers from dangerous devices, the Court’s recent decision in Riegel v. Medtronic turns Congress’ intent on its head. Under Riegel, a law that was intended to protect patients instead immunizes the manufacturers of dangerous medical devices from accountability.

Similarly, in 1974, Congress passed the Employee Retirement Income Security Act, or ERISA, to protect the pensions and employer-provided health plans that millions of Americans rely upon. Yet instead of reading this law to protect workers the Supreme Court reads ERISA to shield rogue health insurers who wrongfully deny coverage to American workers. The upshot: Under the Court’s cases employer-provided health plans are completely immune from legal consequences when they refuse to pay for lifesaving treatment to pad their own bottom line.

Simply put, the Court’s conservatives will continue to twist acts of Congress beyond recognition until Congress stands up for itself—and such pushback cannot be done piecemeal. The Court has been slicing and dicing the law for decades, so repeals of single, offensive Supreme Court decisions are little more than a drop in the bucket.

Ian Millhiser is a Legal Research Analyst at American Progress. 

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