To: Interested Parties
From: Marge Baker, Executive Vice President, People For the American Way Foundation
Re: 2010-2011 Supreme Court Term: Corporate Power v. People’s Rights
Date: June 14, 2011 

Several times this term, a divided Supreme Court has let a right wing political agenda trump the law and common sense, to the detriment of the Constitution and the American people. In AT&T v. Concepcion, a narrow 5-4 majority bent a federal law beyond recognition in order to undermine state consumer protection laws across the country. The case is a “how to” manual for giant corporations who want to defraud their customers with impunity. In Arizona Christian Tuition v. Winn, the Roberts Court made it much harder to challenge to tuition tax credit programs that funnel public money to religious schools. In Bruesewitz v. Wyeth, the Roberts Court slammed the courthouse door on the parents of a girl who was seriously injured by a defective vaccine.

Such decisions come from the same ultra-activist Corporate Court that notoriously struck down a century of law in the Citizens United case and handed our elections over to the highest bidder.

As the Supreme Court enters its final weeks of the 2010-2011 term, it has fewer than 25 cases left to decide. Its decisions – not only who it rules for but the reasoning it uses – will have a significant impact on our ability to hold corporations accountable, protect the integrity of our political system and empower Americans to solve national problems.

Several cases focus on the efforts of corporations to evade accountability for actions that harm employees, consumers, or the general public. For instance, in Wal-Mart v. Dukes,America’s largest private employer seeks to undercut the ability of employees to use class action suits when they have been discriminated against. Class action suits are often the only way for victims to hold defendants accountable. A group of women employees accuse Wal-Mart of engaging in a pattern of sex discrimination throughout their stores around the country. Can they sue as a class on behalf of hundreds of thousands of women employees across the country? Or are their individual cases so different from one another that they do not constitute a class? 

American Electric Power Company v. Connecticut asks if states and private parties can sue power utilities as a nuisance under federal law for contributing to global warming. Or is this remedy so complex – and so far removed from actually solving the global problem – that it is up to the political branches of government and not judges to decide? (Justice Sotomayor has recused herself from this case.)

CSX Transportation v. McBride considers whether railroad employees injured on the job are covered by a specific statute, the Federal Employers’ Liability Act (FELA). Does an injured railroad employee have to prove that his employer’s negligence was the maincause of the injury, or do they only need to prove that it played some part in the injury? Reversal of the lower court would make it harder for injured employees to hold railroads accountable.

Goodyear Luxembourg Tires v. Brown and J. McIntyre Machinery v. Nicastro(consolidated cases) address the extent to which foreign manufacturers can be held liable in state court for their defective products. Due to globalization, foreign manufacturers increasingly market their products through distribution systems that bring their products into American states, often relying on other companies for that marketing and distribution. These two cases involve overseas companies that market their products here via third parties, and who are now trying to avoid being sued in American state courts for their allegedly defective products. Generally, under the Constitution, a state court can’t exercise jurisdiction over a defendant unless that defendant has some connection to that state.  The two cases ask if an injured consumer can sue a foreign manufacturer in a state court if its only connection to that state is that a third party markets its products in that state, or markets its products in the U.S. without specifically targeting that particular state.

Actavis v. Demahy, Actavis v. Mensing, and PLIVA v. Mensing (consolidated cases) address a federal law that requires a generic drug’s labeling to be the same as the FDA-approved labeling for the brand-name version. Does that prevent injured parties from suing the generic drug maker in state court for not putting additional warnings on the label? Note: In 2009, the Court ruled that FDA labeling approval does not preempt injured parties from suing brand-name drug manufacturers in state court.

Smith v. Bayer Corporation asks if a federal court that has denied class certification can prohibit a separate state court lawsuit seeking class certification in a case that is brought by people who had not been part of the federal lawsuit, but who would have belonged to the federal class had it gone through. Although this case involves a suit against a drug manufacturer, that has nothing to do with the underlying statute being interpreted – the Anti-Injunction Act.

Sorrell v. IMS Health involves a Vermont law prohibiting drug manufacturers from mining prescription data from pharmacies in order to market drugs to doctors. The Court may address whether such data mining is constitutionally protected as commercial speech under the First Amendment.

McComish v. Bennett and Arizona Free Enterprise Club v. Bennett examine the public financing of elections in Arizona and have implications for the integrity of state elections. Currently, state candidates in Arizona can accept public funding for their campaigns. Such candidates are limited to those funds unless they have a privately-funded opponent whose spending exceeds a certain amount or an independent group campaigning against them spends more than a certain amount. In these cases, the publicly funded candidates receive additional funding from the state. Does the First Amendment allow this? Does the law unconstitutionally chill spending by privately financed Candidate A (or contributions by her supporters) because they know that it could lead to her publicly funded opponent getting more money? 

Finally, Bond v. United States explores individuals’ standing to make a Tenth Amendment claim. The Tenth Amendment is cited by many Tea Partiers and others on the right as part of their efforts to diminish federal authority. Although this is a case on who has standing to sue, the Court may give clues to its views on this amendment. The Tenth Amendment goes to the federal structure of our country and the rights of states; it does not address the rights of individuals. So the question is whether an individual can make a Tenth Amendment argument. Do individuals have standing to challenge a federal criminal law on the basis that Congress has no right to legislate in that area, and that the Tenth Amendment leaves that issue to the states alone?

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