Earlier this month, the Supreme Court heard oral arguments in AT&T Mobility v. Concepcion, where the cell phone company is asking the Supreme Court to demolish class-action suits and cripple state consumer protection laws. This case threatens to be one of many where the Roberts Court bends the law in order to give even more power to already-powerful corporations.
In the Huffington Post, David Arkush of Public Citizen has an interesting observation about the arguments AT&T is making to sway the Roberts Court: They are nakedly aimed at the conservative Justices’ political ideology, not any conception of the law. After noting how eager the Roberts Court has been to overrule decades of once-settled law, Arkush writes:
[W]hen the court is so willing to remake the law in a broad range of areas, individual political appeals become much more important. A devastating piece of evidence on this point came [when] AT&T’s lawyers made this argument:
"Accordingly, California’s professed belief that class actions are necessary for deterrence boils down to the proposition that deterrence is served by imposing on all businesses — without regard to culpability — the massive costs of discovery that typically precede a class certification motion and the inevitable multimillion dollar fee award extracted by the class action attorneys as the price of peace. In other words, because class actions always cost vast amounts to defend and eventually settle with a large transfer of wealth from the defendant to the class action lawyers no matter how guiltless the defendant may be, all businesses will be deterred from engaging in misconduct by the very existence of this externality producing procedure."
Note that this is a pure policy argument, not a legal argument. More important, it’s politically charged hyperbole. …
AT&T’s lawyers are not hacks. They are some of the nation’s best Supreme Court litigators. It is a devastating indictment of the Roberts court that these lawyers think repeating myths about greedy trial lawyers is an effective way to argue. They must think the court is brazenly activist and political.
Hmm, I wonder what gave them that idea?