Senators examine high court record on cases against business

WASHINGTON–The Supreme Court’s recent decision in the Wal-Mart v. Dukes sex discrimination lawsuit was re-litigated on Wednesday–in the political arena, with the debate focused on the court’s approach to corporate cases.

The Wal-Mart case was Exhibit A at a Senate Judiciary Committee hearing probing whether the nation’s highest court has tilted too much toward big business, restricting access to the legal system through a series of recent opinions.

“You get the unfortunate feeling that many of the Justices view plaintiffs as a mere nuisance to corporations,” Committee Chairman Patrick Leahy, a Democrat from Vermont, said in his opening remarks. He said the legal rights of average citizens are “being eroded by what appears to be the most business-friendly court in the last 75 years.”

Leahy’s view was sharply rebuffed by the top Republican on the panel, as well as several conservative witnesses, who argued that the Supreme Court’s 2010 decisions tracked legal precedent and did not favor corporate America.

Iowa Sen. Chuck Grassley, the ranking Republican, said Democrats seemed to want the justices to “decide cases based on the empathy they have for certain litigants.”

That’s “misguided” and “very contrary” to the principals of America’s legal system, Grassley said. “That’s a dangerous road to go down if you truly believe in the rule of law.”

The Wal-Mart case has been among the most hotly debated of the 2010 Supreme Court term, which ended on Monday. The lawsuit’s plaintiffs–a class of as many as 1.5 million women–argued that the company’s policies were discriminatory, denying female workers pay increases and promotions.

In a 5-to-4 ruling, the Supreme Court said the women could not proceed with the suit as a class-action, because their collective claims against Wal-Mart didn’t have enough in common. The justices didn’t rule on the underlying substance–whether Wal-Mart had in fact discriminated against the women.

But some experts have said the implications could be wide-ranging, restricting the ability of other plaintiffs to join together in class-action cases. The first witness at Wednesday’s Judiciary Committee hearing was Betty Dukes, the lead plaintiff in that case.

“Women will now have to pursue smaller class cases or an individual action,” she told the committee members. “Many women will give up, because it is too hard to sue Wal-Mart on their own. It’s not easy to take on your employer. It’s even more difficult when that employer is the biggest company in the world.”

Her testimony drew praise and nods of agreement from Democrats on the committee. And other witnesses echoed her argument. Melissa Hart, a constitutional and employment law expert at the University of Colorado, said several of this term’s Supreme Court rulings would erect significant new hurdles to using class-action lawsuits to address corporate malfeasance.

Besides the Wal-Mart case, Hart pointed to the Court’s ruling in AT&T v. Concepcion, in which a California couple took what was advertised as a “free” cell phone from AT&T, only to find they were later charged $30 by the telephone giant. They tried to file a class-action suit, but they had signed an AT&T contract waiving that right and requiring them to resolve the matter through binding arbitration.

The justices, in another 5-to-4 ruling, said businesses can use such fine-print contracts to bar their customers from filing class-actions.

“Both of the cases reflect tremendous skepticism–I think it’s fair to call it hostility–to class-action disputes,” Hart said. “Because the class action is the only way to reach many kinds of system misconduct,” she said, these decisions “insulate” corporations from consumer litigation.

Other witnesses dismissed such arguments as over-wrought and not supported by a full examination of the court’s 2010 decisions. Andrew Pincus, a private Washington attorney and co-director of Yale Law School’s Supreme Court Advocacy Clinic, said there is “no basis” for concluding the court’s decisions favored corporations over defendants this term.

He pointed to his own analysis, which concluded that businesses and plaintiffs each won 9 cases. “If you look at this term’s decisions, it’s really a draw,” he said. In the cases where companies prevailed, he added, the plaintiffs had been seeking “radical” new legal remedies or rights that were correctly rebuffed and tracked precedent.

Robert Alt, a senior legal fellow at the conservative Heritage Foundation, also sharply disputed the notion that the Court’s decisions somehow restricted access to the justice system. He noted that in the Wal-Mart case, the plaintiffs can still sue the company by filing “smaller and better class actions.”

He said the only people who were hurt by that decision were trial attorneys trying to earn millions of dollars in legal fees.

For her part, Dukes said she wasn’t so sure. “There are many Betty Dukes who want their voices to be heard,” she said, “I am afraid the court’s ruling will leave them without having their due day in court.”

Asked whether she would give up on her own suit against Wal-Mart, she said: “Absolutely not.”