TO: Interested Parties
FROM: Jamie Raskin, Senior Fellow, People For the American Way Foundation
DATE: September 28, 2012
RE: The 2012-13 Supreme Court Term: Many More Chances for Conservative Mischief
As the Court takes the bench for its 2012-13 Term, the corporate-conservative bloc has some exciting opportunities. It can insulate corporations all over the world from tort liability for participating in human violations challenged under our Alien Tort Statute. It can turn the clock back on affirmative action in American higher education. Depending on its decision to hear a few key cases still in the pipeline, the Roberts Court may also give itself the chance to dismantle the essential machinery of Voting Rights Act protection and reverse a federal appeals court which declared the Defense of Marriage Act unconstitutional.
In all these cases, the hard-core conservatives—Justices Antonin Scalia, Clarence Thomas, Sam Alito and Chief Justice Roberts—need only pull over Justice Anthony Kennedy to inflict heavy damage on a number of essential civil rights and human rights reforms of our time.
I’ll give you 5-4 odds that the conservative bloc prevails in at least a few of these cases, setting back important social progress and underscoring the mammoth stakes of the November presidential and Congressional elections.
Kiobel v. Royal Dutch Petroleum
On Monday, the Court hears arguments in Kiobel v. Royal Dutch Petroleum, a pivotal case about the Alien Tort Statute (“ATS”), which gives aliens the right to bring cases in our federal courts when they are the victim of serious torts committed in violation of international law. The plaintiffs, who are Nigerian citizens, allege that the Royal Dutch Petroleum Corporation acted in complicity with the brutal Nigerian military dictatorship in the early 1990s to commit torture, extrajudicial executions and widespread crimes against humanity.
Jurisdiction to hear the suit was clear. In 2004, the Supreme Court held, in Sosa v. Alvarez-Machain, that the Alien Tort Statute gave federal courts jurisdiction to hear claims about torts committed against aliens that violate well-established international norms like the human rights norms implicated in this case. Yet a bitterly divided Second Circuit panel in Kiobel held for the first time that the statute does not allow courts to hear suits against corporations as opposed to individuals. The Kiobel majority’s ruling on this issue was amazing since the issue was never raised, never briefed, never argued and never decided in any of the proceedings below that took place over the course of nearly a decade. (This rings a bell for close observers of the Citizens United majority, which also pulled a rabbit out of a hat to ask and answer a question never raised below.)
Much of the Circuit Court majority’s reasoning turned on the fact that corporations are left out of the jurisdiction of modern international criminal tribunals. But this is plainly irrelevant since the Alien Tort Statute covers only civil tort suits. The majority simply disregarded the text, history and purpose of the ATS and invoked the putative absence of cases holding corporations liable in international law for human rights violations. But Judge Leval, who dissented, observed that “international law generally takes no position” on whether civil liability should be imposed for violation of its norms “and leaves that question to each nation to resolve.” He concluded that “the United States, through the ATS has opted to impose civil compensatory liability on violators and draws no distinction in its laws between violators who are natural persons and corporations.”
Judge Leval captured the fundamental importance of this case when he stated that, “Neither the law of nations nor the Alien Tort Statute furnishes any basis for leaving corporate and other juridical entities free to violate fundamental human rights without liability to victims.”
The Supreme Court now must decide whether the issue of corporate liability was in fact a question of “subject matter jurisdiction” such that it could be interjected spontaneously by the Second Circuit without anyone ever raising it below. In fact, the issue of corporate torts is plainly a question of substantive liability under the statute and not one of the court’s jurisdiction, and so the question never should have been adjudicated in the first place.
In any event, if the Court comes to confront the merits of the issue, the civil liability of corporations for the wrongs they commit is firmly ensconced in our law, a fixture going back centuries to William Blackstone, who wrote of it. As the D.C Circuit has written, “by 1789 corporate liability in tort was an accepted principle of tort law in the United States.” Holding corporate tortfeasors accountable for their wrongs is an essential aspect of civil justice in a world filled with corporations and a critical aspect of the social contract we have with corporations which includes limited liability of the shareholders, perpetual life of the company, and a network of other social supplements and supports. There is nothing in the Alien Tort Statute that implies in the slightest that this general background rule has been waived or that there is any legislative purpose to selectively immunize corporations from their tort liability under the statute.
Indeed, the Second Circuit ruling is an extreme and lonely outlier in the federal courts. The Eleventh Circuit stated in Romero v. Drummond Co., Inc. (2008) that “the law of this circuit is that this statute grants jurisdiction from complaints of torture against corporate defendants.” The D.C. Circuit in Doe v. Exxon Mobil Corp. (2011), emphasized that the “law of the United States has been uniform since its founding that corporations can be held liable for the torts committed by their agents,” and remarked that “it would create a bizarre anomaly to immunize corporations from liability for the conduct of their agents in lawsuits brought for ‘shockingly egregious violations’ of universally recognized principles of international law.”
The Ninth Circuit similarly found corporate liability for the genocide claims at issue in Sarei v. Rio Tinto (2011), and Judge Richard Posner, writing for a unanimous Seventh Circuit in Flomo v. Firestone National Rubber Co. (2011), found corporate tort liability to be the mainstream American rule and “common” all over the world. Thus, the Second Circuit is totally isolated on this point.
In short, this should be an easy case based on a wall of precedent. Yet, we know that the rule of law faces dramatic twists and curves on the Roberts Court when it comes to holding corporations accountable. The Court has not only transformed corporations into citizen-speakers and their treasuries into potential political slush funds, but it has systematically worked to insulate corporations from tort liability and class action lawsuits. (See my PFAW Report, “The Citizens United Era: How the Supreme Court Continues to Put Business First.”) If the conservatives on the Court have their way in this case and deny corporate liability under the Alien Tort Statute, it will not only mark a huge setback for the deterrence of corporate violence and criminality on planet earth, but it will be the clearest evidence yet that they want to endow corporations with super-human rights and free them of the most basic obligations of citizenship.
Fisher v. University of Texas at Austin
The right-wing attack on affirmative action continues this Term with Fisher v. University of Texas at Austin, a sweeping Equal Protection challenge to an exceedingly modest use of race and ethnicity in UT’s admissions process to correct for continuing weakness in the numbers of minority students on campus. If you are puzzled why the Court is returning once again to revisit affirmative action, a policy that has already been reduced to slim significance, you are not alone.
Most people thought that the issue was settled for at least 25 years in 2003, when the Court decided Grutter v. Bollinger and Gratz v. Bollinger, cases testing the constitutionality of affirmative action programs as practiced, respectively, at the University of Michigan Law School and the University of Michigan’s undergraduate program. The majority upheld the Law School’s “holistic” use of race and ethnicity in the process to promote diversity in the educational experience because all consideration of applicants remained individualized and there were no quotas and no numerical targets used in the selection process. Meantime, the majority invalidated the undergraduate plan because racial or ethnic minority status was quantified and treated as adding bonus points in a rigid numerical weighing system, a process that leaned towards being a quota system. While rejecting the college plan as a blunt instrument, Justice O’Connor found that the kind of diffuse and holistic use of minority status embodied in the law school program was permissible. She thought such affirmative action would be warranted for a period of what she predicted to be another quarter-century.
The Grutter decision reaffirmed and updated Regents of the University of California v. Bakke, the 1978 decision in the Court which struck down numerical quotas for minority admission but approved the generalized use of race in the admissions process to promote the compelling interest in having a diverse student body. Grutter was met with relief and enthusiasm throughout American academia, in the business sector, by the armed services, and across American society.
Now, in Fisher v. University of Texas at Austin, which will be heard on October 10, eight justices will determine whether the University of Texas--an historically segregated school which was forced by the Supreme Court to admit an African-American student to the law school in 1950--can continue its modest and individualized consideration of minority racial and ethnic status in the admissions process to address a continuing paucity of minority students on campus. (In what is by now a familiar pattern, Justice Elena Kagan—a former Solicitor General who was involved in this case as well as many others--has recused herself, leaving the potential for a 4-4 tie. A tie would affirm the 5th Circuit Court of Appeals’ rejection of Abigail Fisher’s Equal Protection lawsuit.)
There is indeed not much new in the current challenge to affirmative action, including the lawyers who have assembled to seek its total demolition. The major factual difference on the ground in the Fisher case is that the main tool of college admission at UT today is the state’s famous Top Ten Percent program, which guarantees automatic acceptance to any public university to all Texas high school students who finish in the top 10% of their classes based on their grade-point average. The Top Ten Percent plan followed in the wake of the 5th Circuit’s decision in Hopwood v. Texas, which essentially prevented UT from taking race into account in the admissions process.
When the Supreme Court made it clear in Grutter that colleges could use race as a limited and non-controlling factor in admissions, UT revived its use in admissions in 2004 to supplement the Top Ten Percent plan, under which 75-80% of the students in the freshman class are admitted. Under the Top Ten Percent law, entering African –American students have made up less than 5% of the class and Hispanics hover around 15%. Significantly, the UT administration was concerned that, although the Top Ten Percent Plan did secure the presence of African-Americans and Hispanics on campus, the numbers were low, “African-American and Hispanic students were nearly non-existent in thousands of classes” on campus and the goal of meaningful diversity in the classroom and campus experience overall was not being met by the slender number of students being admitted.
For the 20-25% of students who are admitted outside the Top Ten Percent plan, UT had an Academic Index (AI) for ranking these applicants and developed also a Personal Achievement Index (PAI), which tries to account for leadership qualities, extracurricular activities, musical and athletic achievements, work and service experience, and other special circumstances. UT added economic disadvantage, race and ethnicity to this compendium of possibly relevant criteria in the PAI. As one federal judge has observed about affirmative action at UT under this plan, race in the admissions process is “a factor of a factor of a factor.”
Significantly, UT is arguing that, even if the plaintiff student in the case, Abigail Fisher, had been African-American or Hispanic and from a rural county and been living in poverty and been a master violinist and pro soccer player and thus achieved a perfect Personal Achievement Index, she would not have been admitted because her Academic Index, based on grades and SATS and other academic factors, was simply too low for admission in what was a very competitive year. In other words, while race is always a tempting scapegoat, it had nothing to do with the plaintiff’s failure to get admitted to UT.
One hopes that the modesty of UT’s program and the fact that the plaintiff’s rejection had nothing to do with race will catch Justice Kennedy’s attention. Likely the swing justice again, Kennedy has never voted to uphold an affirmative action program but he distanced himself somewhat in Parents Involved in Community Schools v. Seattle School District No. 1 (2007) from the conservatives’ ideological crusade for total “colorblindness,” a concept that has no roots in the history of the Fourteenth Amendment, which was concerned with actually dismantling racism and white supremacy, a project that sometimes takes a little bit of race consciousness.
As with the last round of constitutional litigation over affirmative action nine years ago, there is huge support for continuing “plus factor” affirmative action to make certain that our universities reflect the full breadth and diversity of society. The institutions that seek participation and leadership from all diverse sectors of society have been thriving, while those that remain committed to representing a narrow slice of America—the Republican National Convention comes to mind—are languishing. The Court has the opportunity this Term either to wipe out affirmative action or put the polarizing campaign against it to bed for a while.
Still to Come: Same-Sex Marriage and Section 5 of the Voting Rights Act?
The Court’s docket is still unfolding and some other major cases are waiting in the wings and may yet be added.
The Defense of Marriage Act and Same-Sex Marriage
The right of all citizens to get married as a basic civil right has percolated its way up to the Supreme Court in several different appeals and several different postures this Term, but the Court has not yet made any announcements about its plans in the area. One case being pushed comes from the defenders of California’s Proposition 8, which banned same-sex marriage but was invalidated as a nullification of existing rights by the 9th Circuit Court of Appeals in California. Other possible cases involve challenges to the federal Defense of Marriage Act, which provided, among other things, that only male-female marriages could be recognized under federal law. Many people are predicting that the Court will take up the lucid and compelling decision of the 1st Circuit Court of Appeals, written by Judge Michael Boudin, which invalidated DOMA’s strict and discriminatory definition of marriage as a frontal violation of the equal protection clause. That case is U.S. Department of Health and Human Services v. Massachusetts. If the Court decides to take up same-sex marriage, it will be interesting to see whether the conservative Justices who had no problem wiping out dozens of federal and state laws and defying the views of a huge majority of Americans in the Citizens United decision will now strike a populist pose and say they must stand by those popular majorities that want to define marriage as strictly a heterosexual institution. As usual, a high burden of hope rests on Justice Anthony Kennedy, who has written some excellent majority opinions upholding the equal rights of gay and lesbian Americans, especially in Romer v. Evans and Lawrence v. Texas.
Section 5 of the Voting Rights Act
Section 5 of the landmark Voting Rights Act of 1965 has been the central statutory mechanism for protecting the voting rights of African-Americans for nearly a half-century. This provision prevents “covered jurisdictions,” including most of the Deep South States and other Counties that have histories of disenfranchisement and voter suppression, from implementing any changes regarding voting and elections without first securing the approval (“preclearance”) of the U.S. Department of Justice or the United States District Court for the District of Columbia. Section 5 eliminated literacy tests, character tests, unfair election systems, and sneaky devices of all kinds, opening millions of doors to political participation. The Voting Rights Act has been renewed and amended by Congress four times, most recently in 2006, when the reauthorization was signed into law by President George W. Bush.
The Voting Rights Act has been under fire from the start by conservatives on federalism grounds and the criticism has intensified recently. In 2009, in NAMUDNO v. Holder, the Roberts Court walked right up to the edge of the cliff and dangled the possibility of striking down Section 5 as outside of Congress’ enforcement powers under the Fourteenth Amendment. It pulled back at the last moment, but many people think Section 5’s days are numbered.
Today, the Court has before it pending petitions from North Carolina and Alabama seeking the Court’s ruling on whether the continuation of Section 5 of the Voting Rights Act in the 2006 reenactment was constitutional. The claim is that the “pre-clearance” instrument is no longer “congruent” or “proportional” to the problem of voting rights discrimination in the state and thus has no basis in a lawful exercise of Congressional power. The cases are Nix v. Holder and Shelby County v. Holder.
If nothing else, these significant nail-biter cases in the Citizens United era—in which corporations truly enjoy greater rights than people—should remind America that civil rights and civil liberties are already walking the plank on the Court. The last thing we need is more right-wing Justices to push us all overboard.
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