ACSBlog: The Blog of the American Constitution Society

In an op-ed that ran in several regional newspapers this week, Professor Joseph Thai of the University of Oklahoma College of Law notes a series of cases recently decided by the Supreme Court that, he argues, have "made it dramatically more difficult--if not impossible--for ordinary Americans to have their day in court."  He also criticizes "the new court's aggressive efforts to spare businesses the expense of litigation, and the executive the check of unfavorable judicial review," before concluding that "this is not the way it is supposed to be under our Constitution."

According to Professor Thai:

In one case, the court barred victims of pay discrimination from suing under Title VII of the Civil Rights Act unless they rush to file charges within 180 days of an illegal pay decision. No matter if employers keep comparative salary information confidential, making such a deadline practically impossible.

In another case, the court barred juries from awarding punitive damages based on injuries that big businesses such as Philip Morris inflict on the population at large, rather than just on the plaintiff. Never mind that punitive damages traditionally serve to punish and deter reprehensible conduct that harms the general public.

And in yet another case, the court mandated upfront dismissal of antitrust claims that companies evaded competition — and hurt consumers — through suspiciously parallel conduct, absent more specific allegations of a conspiracy. No matter that such smoking gun evidence often surfaces only if those lawsuits can proceed and courts compel businesses to turn over inside information.

As against big business, the little guy fared badly against the government. The court held, for example, that taxpayers cannot challenge in court the president's use of general appropriations to promote religion in violation of the constitutional separation of church and state. Forget that prior case law allows taxpayers to sue when Congress uses taxpayer dollars that way.

And in a lawsuit against a police officer for ramming a fleeing motorist and leaving him quadriplegic, the court took the case from the jury by viewing the chase video for itself and pronouncing the officer the winner. . . .

There are more cases where these came from. These suffice, however, to expose the new court's aggressive efforts to spare businesses the expense of litigation, and the executive the check of unfavorable judicial review.

Professor Thai concludes:

[T]his is not the way it is supposed to be under our Constitution.

As one of its chief architects, Alexander Hamilton, wrote, "the courts were designed to be an intermediate body between the people" and their representatives, "to keep the latter within the limits assigned to their authority." But with doors closed, the courts cannot exercise that vital check on the excesses of our elected officials or those who wield influence over them.