People For the American Way Foundation

A Mixed-but-Mostly-Bad Supreme Court Term

Although today’s decisions consigning DOMA and Proposition 8 to the dustbin of history are a triumph for our nation’s constitutional values, the rest of the term ending today wasn’t so great. The principle of equality under the law that carried the day this morning suffered in other cases. And we’ve seen too many cases where the Court made clear that we are truly in the Citizens United era, where laws and logic are pushed aside so corporate interests can be served. Following are some highlights – and lowlights – of the term that ended today.

The Right to Vote:

The 5-4 decision in Shelby County v. Holder gutted the heart of the Voting Rights Act. Although the vitally important Section 5 preclearance provision survives, the Court’s opinion overturning a related provision means Section 5 doesn’t actually apply anywhere. The Fifteenth Amendment explicitly empowers Congress to pass whatever laws it deems appropriate to prevent racial discrimination in voting. Nevertheless, the majority usurped this role and took it upon itself to declare the preclearance formula created by Congress unreasonable. A charitable explanation of this decision is that the majority was not living in the real world; more realistically, this was just another step in the right wing’s long-term effort to erect more and more barriers to voting.

Protectors of the right to vote had a better result in Arizona’s proof of citizenship case, Arizona v. Inter Tribal Council of Arizona. In that case, the Court ruled that states cannot force people who are registering to vote by mail using a federally approved form to also include proof of citizenship.

Employment Discrimination:

When a supervisor illegally discriminates against an employee, the employer is responsible under federal law. But a 5-4 Court in Vance v. Ball State ignored how workplaces really work and severely constrained who counts as a supervisor in employment discrimination cases. This will make it much easier for companies to avoid liability when someone is discriminated against by an employee who directs their day-to-day activities and exercises control over their work conditions but doesn’t technically have the power to take “tangible employment actions” against them (like hiring or firing them).

On the same day, the same five far-right Justices in University of Texas Southwestern Medical Center v. Nassar made it much harder for employees to show that they were retaliated against for daring to complain about illegal discrimination. The fact that retaliation against complaints of race or sex discrimination is race or sex discrimination went out the window. The dissent accused the majority of being driven by their personal zeal to reduce the number of retaliation claims filed against employers, in stark opposition to the intent of anti-discrimination statutes.

Letting Corporations Ignore Laws Designed to Impose Reasonable Limits on their Power:

In Mutual Pharmaceutical v. Bartlett, the 5-4 majority took another step in immunizing certain drug manufacturers from state lawsuits against their dangerous products. Left to suffer was Karen Bartlett, who took a generic drug that caused 2/3 of her skin to deteriorate, burn off, or become an open wound, while also making her nearly blind. The majority twisted logic to conclude that the generic drug manufacturer could not comply with both state and federal laws, so state laws got chucked. Justice Sotomayor’s dissent accused the majority of imposing their own policy rather than applying the law.

In American Express v. Italian Colors Restaurant, the same 5-4 majority gave large corporations a road map on how to force customers into agreeing to surrender rights they thought were protected by federal law. In this case, Amex used its monopoly power to force a local restaurant into an agreement to settle their disputes by one-on-one arbitration (not a lawsuit of any type, and not class-based arbitration), with terms that prevented it from ever being able to challenge the corporate giant’s illegal exercise of monopoly power. The majority ignored precedent saying that courts should not enforce arbitration agreements that prevent parties from vindicating their federally protected statutory rights.

This trend extended even to human rights abuses in Kiobel v. Royal Dutch Petroleum. Victims of atrocities in Nigeria accused the oil giant of encouraging the Nigerian military to commit those atrocities, and they sued under the Alien Tort Statute. The Court unanimously concluded that American federal courts could not hear the claims of this particular set of plaintiffs. However, the five arch-conservatives set up a broad rule that makes it all the more difficult for such cases to be heard in the future.

Marriage Equality

The end of the term saw two important victories for marriage equality. In United States v. Windsor, the Court struck down Section 3 of the Defense of Marriage Act, which prohibits federal recognition of legal, state-sanctioned marriages of gay and lesbian couples. Justice Kennedy’s 5-4 opinion recognized that DOMA’s purpose was to impose a stigma and inequality onto same-sex married couples but not opposite-sex married couples. Under the Court’s precedent, that is not a legitimate basis for a law, so it must fall. In the day’s second case, Hollingsworth v. Perry, the Court ruled that the proponents of California’s Proposition 8 lacked standing to appeal a federal court’s ruling that Prop 8 was unconstitutional. So marriages in California can and will resume.

Fairness and Affirmative Action:

Many on the far right were hoping that the Supreme Court would forever ban affirmative action programs in public colleges and universities in Fisher v. University of Texas. But that is not what happened. The Supreme Court issued a 7-1 opinion that pointedly did not overrule past cases (like 2003’s Grutter v. Bollinger case) stating that public universities have a compelling interest in the educational benefits that flow from having a diverse student body. But they did rule that the lower court, in upholding the Texas program without the type of trial that had preceded the Grutter case, had not sufficiently inquired into whether the program is narrowly tailored to meet its purpose. The dissenter was Justice Ginsberg, who dissented because she felt there was already enough evidence to support UT’s case without the need to remand it back to the lower court.

What’s Next?

The Court has already announced it will be hearing cases next term that threaten to:

  • undercut the president’s authority to make recess appointments to counter partisan efforts to hobble federal agencies by keeping them from operating (NLRB v. Noel Canning);
  • undercut vitally important campaign finance limits (McCutcheon v. FEC);
  • weaken the Fair Housing Act (Mount Holly v. Mt. Holly Gardens Citizens in Action);
  • allow towns to regularly conduct sectarian prayers at public meetings (Town of Greece v. Galloway);
  • enable states to put affirmative action bans into their constitutions (Schuette v. Coalition to Defend Affirmative Action); and
  • prevent the EPA from adopting critically important rules on air pollution that crosses state lines (EPA v. EME Homer City and American Lung Association v. EME Homer City).

As Bette Davis might say, “Fasten your seatbelts, it’s going to be a bumpy term.”


affirmative action, Alabama, American Express v. Italian Colors Restaurant, Arizona v. Inter Tribal Council of Arizona, California, corporate court, Defense of Marriage Act, discrimination, DOMA, Employment Discrimination, Fisher v. University of Texas, Kiobel v. Royal Dutch Petroleum, marriage equality, Mutual Pharmaceutical v. Bartlett, Prop 8, Shelby County v. Holder, Supreme Court, United States v. Windsor, University of Texas Southwestern Medical Center v. Nassar, Vance v. Ball State University, Voting Rights Act, VRA