Supreme Court Sets The Tone For 2012 Term: Might Makes Right
[Update, February 9, 2012: Erwin Chemerinsky has an article at the ABA Journal explaining how Minneci and another case this term, Ryburn v. Huff, have made it far harder for civil rights plaintiffs to prevail.]
Yesterday, the Supreme Court issued its first two opinions this term* in civil cases, Minneci v. Pollard, a lawsuit brought by a prisoner who was denied medical care at a federal prison run by a private company, and CompuCredit v. Greenwood, a proposed class action on behalf consumers deceived into signing up for a credit card that claimed it would help “rebuild poor credit” but actually instantly filled its $300 limit with $257 in fees.
If you own a prison management company or fake credit repair company, yesterday was a good day for you. If you don’t, not so much.
The court’s reasoning behind the opinions is as poor as we’ve become accustomed to seeing from the Supreme Court lately (see, e.g., PLIVA v. Mensing, which used a statute that didn’t exist to tell the FDA an irreconcilable conflict existed between federal law and state law even if the FDA didn’t think there was a conflict at all). In Minneci, the Court held that a prisoner sentenced to serve time in a federal prison loses his constitutional rights the moment the jailhouse door slams shut if that prison happens to be run by a private company. In CompuCredit, Congress told consumers “You have a right to sue a credit repair organization that violates the [Credit Repair Organizations Act],” 15 U.S.C. §1679c(a), but the Court held that Congress didn’t really mean it, but instead meant, you don’t have the right to file a class action, you don’t have the right to file an individual lawsuit, but you do have the right to pay a couple thousand dollars for an arbitrator to hear your claim for $257.
I suppose I should give the Roberts’ Court some credit for consistency. Like with Citizens United and the Wal-Mart v. Dukes and AT&T v. Concepcion cases, the Court yesterday reaffirmed its primary theory of constitutional law and statutory interpretation: might makes right. Thrasymachus from Plato’s Republic would be impressed.
To the Supreme Court, it doesn’t matter that Richard Pollard of Minneci v. Pollard had no say in whether he went to a private prison or a government-run prison. It doesn’t matter that, when Pollard is hurt at a prison the United States of America sent him to, he can’t sue the United States or its officers, and can’t use the United States’ laws for redress. It doesn’t matter that Wanda Greenwood of CompuCredit v. Greenwood and hundreds or thousands like her were deceived in violation of federal law but now have no effective remedy to enforce that law. It doesn’t matter that Congress passed the Credit Repair Organizations Act to stop that sort of fraud from happening and to punish those who engaged in it.
Don’t believe all that hooey about the Roberts Court being principled because they are protective of First Amendment rights. They’re not (more here), not unless a corporation is the one “speaking” and the “speech” is for profit, or unless the speech poses no threat to corporate interests, like dog-crushing videos or homophobic protests of soldiers’ funerals. Peacefully protest Wall Street and you’ll be pepper-sprayed in the face, with free speech rights that are ambiguous at best and rights against police violence almost impossible to enforce.
The Roberts Court has made itself abundantly clear. If a corporation has the power to hurt or cheat people, it’s the Supreme Court’s job to make sure nothing can hold them accountable. If a corporation or a wealthy individual has the power to influence an election through the concealed expenditure of campaign money, then that’s the way it will be, no matter what the President or the Congress says about it.
* Technically, it’s not the “2012 Term” but the “October 2011 Term” because that’s when they started hearing cases for this term. I call it the 2012 Term, though, because that’s the year in which virtually all the cases are decided, and thus the year that will be listed for the opinions in the official United States Reports.