People For the American Way Foundation

Ginsburg Calls Out the Roberts Court’s Empowering of the Powerful

The Supreme Court issued a ruling today in another of its series of arbitration cases.  Yet again, the Court upheld the ability of a powerful corporation to force consumers to agree to arbitration and sign away their right to engage in class action should the company violate their legal rights.  Class actions are a vital mechanism to hold large businesses accountable.  We’ve been writing about this trend for the past several years in cases like AT&T v. Concepcion and American Express v. Italian Colors Restaurant.

Unlike the other cases, today's ruling in DIRECTV v. Imburgia was not 5-4 in the predictable lineup.  Instead, it was 6-3, with Justice Breyer writing the opinion, joined by Justices Kagan, Scalia, Alito, Kennedy, and Chief Justice Roberts.  Justice Ginsburg (joined by Justice Sotomayor) dissented, while Justice Thomas had a separate dissent.

Ginsburg’s dissent opened up with clear description of how the Roberts Court has empowered corporations and weakened consumers:

It has become routine, in a large part due to this Court’s decisions, for powerful economic enterprises to write into their form contracts with consumers and employees no-class-action arbitration clauses.  …  Acknowledging the precedent so far set by the Court, I would take no further step to disarm consumers, leaving them without effective access to justice.

Americans have long been able to count on strong consumer protection laws to protect them for being victimized by predatory corporations.  Those laws, including the right to class actions, have been essential in letting ordinary people stand as equals to giant corporations and hold those businesses accountable.  Ginsburg is correct to say that the line of 5-4 arbitration cases has left us “disarmed,” because giant corporations are increasingly empowered to change the relationship between buyer and seller into one between predator and prey.

We are, indeed, disarmed and without effective access to justice … despite laws designed to protect us.

In closing, Ginsburg wrote that the Court is:

further degrading the rights of consumers and further insulating already powerful economic entities from liability for unlawful acts.

We deserve better from our nation’s Supreme Court.