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The Supreme Court's 2008-09 Term
14 Penn Plaza v. Pyett (5-4 Decision): The Court struck a blow against victims of discrimination by upholding the validity of a clause in a collective bargaining agreement requiring the submission of statutory discrimination claims to arbitration. Such agreements thwart the will of Congress in enacting civil rights protections. They undermine civil rights protections by preventing victims from getting into court or using the leverage of a potential court claim to obtain appropriate relief.
Ashcroft v. Iqbal (5-4 Decision): Building off of Bell Atlantic v. Twombly (2007), the Court erected new procedural barriers that keep victims of unlawful conduct from seeking redress in our courts. After Iqbal, all civil claimants must plead “factual content,” rather than just a “short and plain statement of the claim,” and the trial judge, according to Justice Kennedy’s ruling, should “draw on [his or her] judicial experience and common sense” to evaluate whether the claim is plausible. Thus, a trial judge now has enormous leeway to determine the merits of a claim before a plaintiff has had an opportunity to uncover vital facts in the discovery process. In the last four years, federal courts have relied on the new Iqbal standard to dismiss thousands of lawsuits involving the environment, medical malpractice, dangerous drugs, investor protection, disability rights, civil rights, employment discrimination, and the taking of private property.
In Iqbal, the Court also took it upon itself to consider an issue that both parties had agreed did not require review and had no bearing on the resolution of the case. In doing so, the Supreme Court eviscerated an entire legal theory by which individuals whose rights have been violated by government officials can seek redress in court. Iqbal sued senior government officials, including Attorney General John Ashcroft and FBI Director Robert Mueller, in what is called a Bivens action, for alleged constitutional violations during his detainment following 9/11. The defendants explicitly conceded that they would be liable if they had “actual knowledge” of discrimination by their subordinates and exhibited “deliberate indifference” to that discrimination. Nevertheless, the five Justices sua sponte reviewed the scope of supervisory liability—not just the pleading requirements, but the theory of liability itself—and severely restricted it.
AT&T v. Hulteen (7-2 Decision): In what Justice Ginsburg later called “Ledbetter repeated,” the Supreme Court reached back to a 1976 decision, General Electric Co. v. Gilbert, in which it had held that discrimination against pregnant women was not discrimination on the basis of sex. Noreen Hulteen and three other AT&T employees sued the company after discovering that their pensions were smaller than expected because AT&T failed to credit them for their time off during pregnancy as they would have credited any non-pregnancy disability leave. The district court and a full panel of the Ninth Circuit held that AT&T violated Title VII of the Civil Rights Act each time it calculated benefits in a way that gave less credit for pregnancy leave than for any other temporary disability leave. But because Hulteen and her co-workers took their leave at a time when it was legal to discriminate against pregnant women under Gilbert (before Congress passed the Pregnancy Discrimination Act to clarify that Title VII protects against discrimination based on pregnancy), the majority concluded that AT&T’s policy was legal – even though it perpetuated a pension benefit calculation that would now unquestionably constitute unlawful discrimination.
Burlington Northern & Santa Fe Railway Co. v. United States (8-1 Decision): In this case, the Court altered what many thought were settled points of environmental law in two ways that will likely prove beneficial to corporate interests. First, the Court imposed a requirement that a person or entity have an “intent to dispose” of hazardous waste in order to be liable as an arranger – a requirement that courts heretofore had not imposed. Second, the Court made it far easier for polluters to avoid joint and several liability. Under federal statutory law, where it is established that multiple polluters have caused environmental harm, all polluters are held jointly and severally liable unless there is a “reasonable basis” for apportioning responsibility among them. Prior to this case, it was relatively difficult to show a “reasonable basis” for apportionment, and thus multiple polluters rarely avoided joint and several liability. In Burlington Northern, however, the Court significantly lowered the bar for “reasonable basis,” making it far easier for polluters to escape joint and several liability.
Coeur Alaska, Inc. v. Southeast Alaska Conservation Council (6-3 Decision): The Court ruled that mining waste could be dumped into lakes if a permit was obtained from the United States Army Corps of Engineers, even though this practice is prohibited by the Environmental Protection Agency regulations.
District Attorney’s Office v. Osborne (5-4 Decision): The Court refused to find that defendant had a constitutional right to gain access to DNA evidence for purposes of a post-conviction petition. The defendant had agreed to pay for the testing and simply needed Alaska to give him the evidence. In light of advances in DNA testing and its reliability in determining innocence, it is essential that all defendants have access to tests that might prove conclusive. Fortunately, a majority of states are providing such access, despite the Court’s ruling that they are not constitutionally required to do so.
Entergy Corp. v. Riverkeeper, Inc. (5-4 Decision): The Court ruled that the Environmental Protection Agency could take cost into account when determining what measures a company must implement when a statute requires that “the best technology available for minimizing adverse environmental impact” be used.
Gross v. FBL Services (5-4 Decision): In this important discrimination case, the Court made it considerably more difficult for victims of age discrimination to prevail in court. The Court granted certiorari in Gross to decide the narrow question of whether a plaintiff in an age discrimination case had to produce direct evidence of discrimination in order to obtain a “mixed motive” instruction to a jury. Instead, however, the unrestrained conservatives on the Court took the much larger step of untethering the Age Discrimination in Employment Act (“ADEA”) from Title VII of the Civil Rights Act of 1964 and imposing a new, tougher standard for ADEA plaintiffs to meet. The Court held that the plaintiff would have to prove that age was the “but for” cause of discrimination and would bear the evidentiary burden of production on each element.
Herring v. United States (5-4 Decision): The Court weakened protections against searches and seizures by holding that it was not necessary to exclude evidence that had been obtained pursuant to a warrant based on erroneous evidence that was negligently supplied by a police clerk. The opinion suggests a broader trend toward allowing the use of evidence obtained through police negligence. This decision continues what appears to be the Roberts Court’s inexorable march toward allowing the use of any evidence in criminal prosecutions as long as it was not obtained in bad faith.
Horne v. Flores (5-4 Decision): Arizona state officials brought a motion to set aside a 2000 district court judgment holding that the state’s plan for funding its English language learning program was arbitrary and therefore did not fulfill Arizona’s duty under federal law to provide educational opportunity for Spanish-speaking students. When the district court reviewed this motion, the state parties argued that the judgment was no longer necessary in light of changed circumstances. Justice Alito, writing for five Justices, remanded the case for the lower court to conduct a “proper examination” of four possible changed circumstances – even though it had already held an 8-day evidentiary hearing before deciding to deny the motion. In dissent, Justice Breyer suggested that, no matter how it justified its analysis, the majority had decided that the district court came to the wrong conclusion, not an uninformed conclusion. Justice Breyer pointed out that it is not the role of the Supreme Court to substitute its judgment for the district court’s on “a host of subsidiary fact-related determinations that warrant deference” under prevailing Supreme Court precedent.
Northwest Austin Municipal Utility District One v. Holder (8-1 Decision): Because the Court was widely expected to hold Section 5 of the Voting Rights Act of 1965 unconstitutional, Northwest Austin was viewed as a victory by some civil rights advocates. However, the Court’s opinion discusses in detail the constitutional infirmities of Section 5, even though its constitutionality has repeatedly been reaffirmed. Indeed, Section 5 was renewed by Congress in 2006, following the compilation of a massive legislative record documenting the continuing need for Section 5 as a bulwark against racial discrimination in voting. The conservative justices, however, made it clear at oral argument that they were eager to overturn the judgment of Congress and strike down the law. The Court’s opinion has been widely interpreted as sending a message to Congress to revisit the law or have it struck down the next time it reaches the Court.
Ricci v. DeStefano (5-4 Decision): The Court went to unseemly lengths to guarantee a ruling in favor of the white plaintiffs asserting a Title VII employment discrimination claim. Over the strong dissent of four justices, the conservative majority held that the city of New Haven, Connecticut engaged in intentional discrimination against white firefighters when it rejected the results of tests for firefighter promotions because they disproportionately excluded African American and Hispanic candidates. In a striking departure from principles that govern appellate review, the Court reversed the case outright, rather than following its usual practice of sending the case back to the lower courts to apply the facts to the new standard. The majority appeared so eager to ensure that the white firefighters would prevail that it entered summary judgment itself, thereby denying New Haven the opportunity to produce facts that would satisfy the new standard.
Summers v. Earth Island Institute (5-4 Decision): In Summers, environmental organizations challenged the United States Forest Service’s regulations that permitted small fire-rehabilitation and timber-salvage projects decisions that individually affect limited areas, but that collectively have a large impact without going through the usual notice and comment procedures. The Court held that a person or group can only sue if they show that they will suffer a “concrete injury” resulting from a government decision. It was not enough for the environmental groups to show that they had hundreds of thousands of members who use and enjoy forest land, some of which would likely be impacted by the Forest Service’s regulations.
Winter v. Natural Resources Defense Council (5-4 Decision): The Supreme Court reversed the Ninth Circuit and permitted naval exercises to go forward even though environmental groups presented evidence that large numbers of marine mammals would be harmed. Justice Ginsburg, writing in dissent, emphasized that the Navy sought to circumvent its obligation under the National Environmental Policy Act to prepare an Environmental Impact Statement before engaging in training exercises and the environmental groups thus showed “almost inevitable success on the merits.” The majority, however, ignored the Navy’s clear statutory violation and concluded that the government and public’s interest in realistic training exercises for sailors outweighs irreparable injury to marine life.