Supreme Court: 2010-11 term in review

Benjamin Zipursky in USA TODAY, June 27, 2011

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By Joan Biskupic, USA TODAY

WASHINGTON — The U.S. Supreme Court has changed dramatically and, as the recent term proved, stayed decidedly the same. The court, which completed its annual session Monday, includes two recent appointees of President Obama and is the most diverse in history. Yet while the nine-member bench looks different, an enduring conservative majority has deepened its imprint on the law.

In the 2010-11 term, the majority exerted its power particularly on business cases, favoring big companies over the interests of consumers and employees. It closed off avenues to the courthouse for people suing corporations yet also for taxpayers who challenge government aid to religious schools. And it continued to roll back campaign-finance laws intended to diminish the influence of wealthy interests in elections.

Among the major developments:

• Women who band together and want to sue a company for systemic sex discrimination face a new hurdle requiring them to identify a companywide policy of bias. The court threw out a class-action lawsuit against Wal-Mart Stores, the nation's largest private employer, on behalf of potentially 1.5 million women, saying the lawsuit lacked the "glue" to unite all grievances.

• Consumers can be bound by a fine-print arbitration clause in cellphone and other retail contracts, even when state law would permit a class-action lawsuit against the company.

• Generic-drug makers, which now provide about 75% of the nation's prescriptions, cannot be sued under state laws for failing to warn of dangerous side-effects, if their labels followed that of the brand-name counterpart.

Legal analysts say such decisions that affect when people can get into court could be the most consequential of the term.

"As we sign up for things like cellphones and agree to a variety of commercial relationships in our daily lives," says Fordham University law professor Benjamin Zipursky, "we rely on the fact that big business knows there is some accountability in the legal system if they push their advantage too far. These decisions could chip away at that accountability."

Controlling such decisions is a five-justice conservative bloc that has been in place since January 2006, when Samuel Alito succeeded moderate Justice Sandra Day O'Connor.

The influence of that majority was evident on social policy, too, as on Monday when it threw out, as a violation of free-speech rights, an Arizona campaign-finance law intended to make it easier for candidates to take on wealthy opponents.

On the winning side in that and other major cases this term were Chief Justice John Roberts, 56, and Justices Antonin Scalia, 75, Anthony Kennedy, 74, Clarence Thomas, 63, and Alito, 61. Dissenting were Justices Ruth Bader Ginsburg, 78, Stephen Breyer, 72, Sonia Sotomayor, 57, and Elena Kagan, 51.

"The presence of three women now on the court does make a difference, and the fact that two of those women are still in their 50s is significant," says Washington lawyer Roy Englert, who argues regularly before the justices. "But when you look at the bench and see the three justices at its center — Roberts, Scalia and Kennedy — it's a reminder of who's at the center of power on this court."

The justices sit in order of seniority, with the newest members at the two wings: Sotomayor, the first Hispanic justice, who succeeded David Souter in 2009; and Kagan, who replaced John Paul Stevens in 2010 and gave the bench its record-three-women.

Their views do not clash with those of their predecessors.

"The addition of Justices Sotomayor and Kagan has brought two fresh voices and new perspectives," says Irv Gornstein, director of Georgetown University law school's Supreme Court Institute. "But this term's decisions do not differ in any major way from the decisions … expected had Justices Souter and Stevens remained on the court."

Three cases; big business

In cases that mattered most to the business community, notably the Wal-Mart dispute, business prevailed.

Robin Conrad, executive vice president of the National Chamber Litigation Center, said three rulings were of special interest to the U.S. Chamber of Commerce: the rejection of the Wal-Mart class action; the spurning of the class action against AT&T Mobility by cellphone purchasers; and the high court's tossing of a claim by six states asking federal judges to set limits on power-plant carbon emissions that exacerbate global warming.

"These three cases were easily the most important business cases of the term," Conrad said.

She said large class actions, which allow individuals to sue on behalf of those with similar interests, often are "twisted and abused." She said they can force businesses to choose between settling a case without merit or face a potentially large jury verdict and financial ruin.

Yet Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., views Wal-Mart and other wins for business as helping business "at the expense of individual Americans."

He has scheduled a hearing Wednesday to focus on how the recent decisions affect corporate accountability and "barriers to justice." Among the witnesses scheduled to testify is Betty Dukes, the lead plaintiff in the Wal-Mart challenge.

Washington lawyer Andrew Pincus, who has applauded the Wal-Mart ruling, is also scheduled to appear before the panel. He told reporters last week that corporations would have seen a deluge of costly class actions if the justices had not cut off the Wal-Mart claim.

"This was not your father's class action," Pincus insisted, stressing the size and potential financial liability of a case including all Wal-Mart stores nationwide.

Still, the tougher standard for workers trying to get into court will apply to all federal class actions, which groups such as the Lawyers' Committee for Civil Rights Under Law say have been "a potent tool" to hold employers accountable for bias.

Ray McClain, the Lawyers' Committee's project director for employment discrimination, said after Wal-MartStores v. Dukes that the court "acted yet again to make obtaining justice harder for the common man and woman."

Scalia vs. Ginsburg

The Wal-Mart case pit Justice Scalia, now the longest-serving member of the bench and its most outspoken conservative, against Justice Ginsburg, who is now senior among the liberals and who gained national prominence before becoming a judge as a women's rights advocate.

Scalia, writing for the majority, particularly discounted expert testimony about a strong Wal-Mart corporate culture that accepted stereotypes about women being less competent.

Ginsburg, taking the lead for dissenters, referred to common employer preconceptions about women's abilities.

"Managers, like all humankind, may be prey to biases of which they are unaware," she wrote. "The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes." She observed that the higher one looked in the Wal-Mart system, the lower the percentage of women.

Signing her opinion were Breyer and the newest justices, Sotomayor and Kagan.

How those new justices might eventually change the court and affect the law in America is difficult to predict.

"In part, that is because change usually happens over time, not immediately," says Georgetown University's Gornstein. "But more important, a justice's influence depends on the composition of the rest of the court," that is, which side has more votes.

Referring to the powerful liberal Justice William Brennan who served 1956-90, Gornstein continued, "Justice Brennan had enormous influence …but he would have been doing a lot of dissenting on this court."