U.S. Supreme Court Hides Behind Anonymity

The Revolution Won’t be Televised

A while back, I noted the U.S. Supreme Court has done more than it’s fair share to contribute to the divide between the “haves” and the “have nots” in our society.

The President and the U.S. Congress receive much of the blame in the “one percent v. 99 percent” debate because they can be seen sweating under the glare of the television spotlight. They can be held accountable. But the nation’s highest Court conveniently refuses to allow its proceedings to be televised.

Now the Court has issued a press release that makes it clear it will not allow television cameras when it hears arguments on President Obama’s health care law, the Patient Protection and Affordable Care Act, on March 26, 27, and 28.  The law  is being challenged by 26 states and the National Federation of Independent Business. Instead, the Court will provide the audio recordings and transcripts of the oral arguments on the Court’s website, www.supremecourt.gov.

The audio recordings and transcripts undoubtedly will be of interest to a few law students and historians but most people today “watch” their news on television or the Internet. Refusing to be televised is akin to insisting in 1440 that the bible be penned in ink by monks, longhand, rather than printed on the newfangled Gutenberg printing press.

A USA TODAY/Gallup Poll found that 72% of the people surveyed think the Court should allow cameras to televise oral arguments on the health care law.

Many Americans are dismayed by the tawdry spectacle of the on-going Presidential race – which is infused with money funneled through superpacs from foreign countries and their lobbyists.  How many know that this is the direct result of the Court’s 5-4 decision in Citizens United v. Federal Election Commission, 558 U.S. 08-205 (2010), which held that corporate funding of “independent” political broadcasts in elections is protected speech under the First Amendment?  Many on both sides of the political aisle believe the Citizens United ruling is literally one of the worst rulings in history and reflects a Court that is sadly out of touch with reality.

Could the Court be unaware of the deleterious effect of the Citizen’s United ruling on our country?  One could make a compelling argument that televising court proceedings would not only be good for America but also for the  U.S. Supreme Court.

DECK STACKED IN FEDERAL COURTS?

Note: The media office of the Administrative Office of the U.S. Courts has failed to respond to a request for comment about this blog entry. PGB

Workers who bring employment discrimination cases in federal court are not just paranoid. Apparently, the deck really is stacked against them!

(Isn’t this discrimination in itself?)

The New York Law School Law Review and The Employee Rights Advocacy Institute For Law & Policy co-sponsored a symposium April 23, 2012 to examine the high failure rates of plaintiffs in employment discrimination cases in federal courts.

Specifically, they discussed why employment discrimination cases are more likely to be summarily dismissed by federal judges through rulings on pre- and post-trial motions.  One factor is believed to be  U.S. Supreme Court decisions (Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal) that raised the quantum of facts that a plaintiff must plead to avoid a motion to dismiss.

“A substantial and growing body of evidence, both empirical and anecdotal, shows that civil rights cases, and in particular those alleging employment discrimination, are disproportionately susceptible to dismissal before trial as well as to unfavorable  (judgment notwithstanding verdict)  motions after trial,” said the symposium planners.

Approximately 150 attended the symposium, including  retired Judge Nancy Gertner from the U.S. District Court for the District of Massachusetts. She said the message sent by Twombly and Iqbal is that courts should be more concerned with protecting employers from being falsely accused of discrimination than they should be with allowing discrimination to go unpunished, and that as a result, the courts effectively have repealed the protections of Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination.  A report of the symposium is availble from the Employee Rights Advocacy Institute for Law and Policy.

A study by the Federal Judicial Center of summary judgment cases filed in seventy-eight federal district courts in 2006 found that federal judges granted requests by the employer for dismissal on a motion for summary judgment 73 percent of the time. This compares to a rate of dismissal of:

  • 53 percent in contract cases,
  • 54 percent in tort or personal injury cases
  • 70 percent in civil rights cases generally
  • 64 percent in prisoner cases
  • 53 percent in “other” cases, including antitrust (53%) and patent (47%) and trademark (50%).

See Joe Cecil & George Cort, Federal Judicial Center, Estimates of Summary Judgment Activity in Fiscal Year 2006 (2007).

Some district courts granted summary judgment motions in employment discrimination cases more than others. In the Ninth Circuit, which is based in San Francisco, CA, some courts granted summary judgment in employment discrimination cases 93% of the time. In the Eleventh Circuit, which is based in Atlanta, GA, some courts granted summary judgment in employment discrimination case 95 % of the time.

This is a trend that has been getting WORSE for years, according to Cornell Law School Professors Kevin M. Clermont and Stewart J. Schwab, authors of Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse? 3 Harv. L. & Pol’y Rev. 103 (2009).

They write that the plaintiff win rate for employment discrimination cases in federal court from 1979-2006 was 15 percent, which was much lower than that for non-jobs cases (51%), possibly because of hurdles placed in jobs cases that do not exist in non-jobs cases.

Furthermore, the authors state that there was a startling 37 percent drop in the number of employment discrimination cases in federal district courts between 1999 and 2007.  They say the decline may be  because “federal courts disfavor employment discrimination plaintiffs, who are now forswearing use of those courts.”  In other words, fear of bias by federal judges may be discouraging  potential plaintiffs from even filing employment cases in federal court!

Plaintiffs who appeal their losses or face an appeal of their victory “again fare remarkably poorly in the circuit courts,” the authors write.  Defendant/employers in the federal courts of appeals have managed over the years to reverse forty-one percent of their trial losses in employment discrimination cases, while plaintiff/employees manage only a nine percent reversal rate.

Generally, it appears that employers do far better in federal courts these days than ever before. A 2010 study found  the U.S. Supreme Court under the leadership of Chief Justice John G. Roberts, Jr., has ruled for business interests 61 percent of the time, compared with 46 percent in the last five years of the court led by Chief Justice William H. Rehnquist, who died in 2005, and  42 percent by all courts since 1953.

Some other sobering but well-documented observations from the Clermont/Schwab article:

  • Plaintiffs in employment discrimination cases are much more likely to have to go to trial, possibly because employers perceive the anti-plaintiff bias works in their favor and refuse to settle.
  •  “ … [E]mployment discrimination cases constitute one of the least successful categories at the district court level, in that plaintiffs win a very small percentage of their actions and fare worse than in almost any other category of civil case.”
  • “Defendants, in sharp contrast to plaintiffs, emerge from appellate court in a much better position than they were in when they left trial court. … we have unearthed an anti-plaintiff effect that is troublesome.”
  • “The bulk of employment discrimination cases turn on intent … The subtle question of the defendant’s intent is likely to be the key issue in a nonfrivolous employment discrimination case that reaches trial, putting the credibility of witnesses into play.  When the plaintiff has convinced the fact finder of the defendant’s wrongful intent, that finding should be largely immune from appellate reversal … Reversal of plaintiffs’ trial victories in employment discrimination cases should be unusually uncommon. Yet we find the opposite.”

It is unlikely that employment law cases are weaker than other types of cases. The authors note that many studies show that people are not anxious to sue except in egregious situations and that contingent-fee attorneys, as well as those looking to fee-shifting, are reluctant to bring questionable claims. They say the impact of other factors on the decline of employment discrimination cases in federal court —  such as alternative dispute resolution — is not known but is unlikely to have caused the precipitous drop.

The authors say the employment discrimination category has dropped in absolute number of terminations every year after 1998, when the total was 23,722.  They say the drop has gone virtually unnoticed and unexplained.

It is understandable that courts want  to place procedural limitations on  cases to avoid overcrowded dockets and to  safeguard judicial resources. However, it is obviously unfair (or worse) for judges to single out employees who allege discrimination for disparate treatment. Like any other plaintiffs, these plaintiffs have  no where else to go but the courts for justice and they have every right to expect a fair and impartial hearing.

In fact, Americans are guaranteed a right to a trial by jury in federal court cases under the Seventh Amendment of the U.S. Constitution.  Specifically, the Seventh Amendment states:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Double Standard for Older Workers

It is much more difficult for older workers to prevail in federal discrimination lawsuits than for victims of race, sex, national origin, color and religion.

But why?

As Shakespeare said: “If you prick us, do we not bleed?”

The Age Discrimination in Employment Act (ADEA),  29 U.S.C. §§ 621 et seq., makes it  “unlawful for an employer . . . to discharge any individual . . . because of such individual’s age. Id. at § 623(a).”  The ADEA covers employees who are age 40 and older.

To prevail on an ADEA claim, however, the U.S. Supreme Court says a plaintiff must establish that “that age was the ‘but-for’ cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009).

In other words, the ADEA plaintiff must show that but for age discrimination, the employer would not have made the adverse job decision (i.e. demotion or dismissal)..

This is a far higher standard than required in Title VII of the Civil Rights Act of 1964, which covers discrimination on the basis of sex, national origin, color and religion.

In Title VII lawsuits, it is sufficient for the plaintiff to show that discrimination was a “motivating factor” in the adverse job action. The Title VII plaintiff is not required to show that age was the determining factor.

Once the Title VII plaintiff shows that the employer’s motivation included unlawful discrimination, the burden of persuasion shifts to the employer to prove that it would have taken the same employment action for a legitimate reason in the absence of discrimination.

The burden does not ever shift from the plaintiff to the employer in an ADEA case.

There has been discussion – but no action – in the U.S. Congress to adopt new legislation to establish the same causation theory for the ADEA that exists with respect to Title VII but so far nothing has happened except that older workers continue to lose lawsuits where they have shown they were victims of gross age discrimination.

By holding ADEA plaintiffs to a much higher standard than other discrimination victims, the U.S. Congress and the U.S. Supreme Court seem to be saying that  age discrimination is somehow less harmful than other types of discrimination. But where is the evidence for that?

Age discrimination is possibly more insidious today than it has been at any other time in history.  When older workers lose their job today, they may never find another job, let alone another job that is comparable to the one they lost. Many hurtle toward their retirement years unprepared, without sufficient funds or even health insurance.

According to a recent study by the Pew Charitable Trust, more than 42 percent of unemployed workers older than 55 had been out of work for at least a year in the fourth quarter of 2011 — the highest percentage of any age category. Only 21 percent of people under 25 are long-term unemployed. That number rises to 29 percent for ages 25-34; 36 percent for ages 35-44; and 39 percent for ages 45-54.

It’s no picnic for many older workers who remain employed either. They may be “stuck” in bad jobs. Employers know that older workers will find it difficult – if not impossible – to prevail in age discrimination lawsuits. And they know that older workers can’t afford to quit and face the risk of chronic unemployment.   This situation does not provide any incentive for employers to treat older workers with respect and dignity.

Not surprisingly, the number of age discrimination complaints filed with the Equal Employment Opportunity Commission has more than doubled in the past decade, to a total of 23,465 in 2011.

The real tragedy in all of this is the sense that many older workers —  who have spent a lifetime paying taxes and being good citizens — are denied equal protection by the very democratic institutions that are charged with  insuring equal protection for all.

The Veil over the U.S. Supreme Court

In Cleveland, puppets are being used by a TV station to reenact excerpts from a political corruption trial that is closed to the public … Why not have puppets reenact  U.S. Supreme Court hearings?  Big Bird could play Chief Justice John G. Roberts and Abbie Cadabby could play Elena Kagen. PGB

 

Our society is increasingly divided between the “haves” and the “have nots,” with the vast majority of Americans now strongly disapproving of the way that government is operating.

The President and the U.S. Congress receive much of the blame because they are seen fumbling in prime-time under glare of the television spotlight. But there is another equally or even more powerful branch of government that manages to stay out of the spotlight – the judiciary, led by the U.S. Supreme Court.

If you think that corporations have disproportionate influence in American government, you need only look to the Court’s 5-4 decision in Citizens United v. Federal Election Commission, 558 U.S. 08-205 (2010), holding that corporate funding of “independent” political broadcasts in elections is protected speech under the First Amendment. That ruling alone has spurred a tsunami of money into partisan election politics from corporations seeking to advance their interests.

Most people today “watch” their news on television or the Internet. Refusing to be televised is akin to insisting in 1440 that the bible be penned in ink by monks, longhand, rather than printed on the newfangled Gutenberg printing press. However, federal judges are elected for life and if they don’t want to be televised then who’s going to make them?

Now the Court is getting another opportunity to affect the balance of interests between corporate America and the average American. The Court has agreed to review the constitutionality of President Obama’s health care law, which is being challenged by 26 states and the National Federation of Independent Business.

A recent USA TODAY/Gallup Poll found that 72% of the people surveyed think the Court should allow cameras to televise oral arguments on the health care law, which are scheduled to be held in March.

Courts in the United States generally are unsympathetic to issues surrounding workplace abuse and unfair dismissal,  especially when compared to courts in many other industrialized societies.  Last summer, for example, the U.S. Supreme Court refused to certify a class action involving 1.5 million workers at Walmart who allege sex discrimination in violation of Title VII. The Court’s ruling will have an enormous  impact upon the ability of workers to secure fair treatment in the workplace.

Unfortunately, most non-union workers are clueless about how few  protections they really have until  they are escorted from the building with their possessions in a cardboard box.  Televising the proceedings of the U.S. Supreme Court is important to the goal of having an informed and educated public. Or is that what the Court is afraid of?