November 3, 2008 The Pump Handle 0Comment

On the eve of the election, The Nation reminds us that the next president will play a crucial role in determining the makeup of the Supreme Court. Herman Schwartz describes the Court’s current makeup and rattles off current rulings that would be threatened by the appointment of another conserviative justice. Then, other contributors explain how the Court has shaped the legal landscape on workers’ rights, healthcare, and consumer safety.

Eric Schnapper, a law professor at the University of Washington School of Law, looks at Supreme Court decisions that he says allow employers to violate workplace laws with “virtual impunity”. Here’s an example that’s still fresh in many of our minds:

The most recent of these decisions, Ledbetter v. Goodyear Tire & Rubber Co. (2007), concerns Lilly Ledbetter, who tried to enforce the prohibition against gender wage discrimination in the 1964 Civil Rights Act. Ledbetter worked for the Goodyear Tire and Rubber Company from 1979 to 1998, during which period Goodyear paid her less than her male counterparts. Like most employers, Goodyear keeps salaries secret. Ledbetter learned of the discrimination only when she retired; by then the pay discrepancy had become very large. When she sued for back pay to make up for the accumulated shortfall, a 5-to-4 majority ruled that because she hadn’t complained to the Equal Employment Opportunity Commission within 180 days after the discriminatory act first occurred–when she hadn’t even known she was being discriminated against–she was entitled to absolutely nothing. At a time when women on average still earn significantly less than only a fraction of similarly qualified men, the decision creates an often insurmountable barrier to the right to equal pay.

Sarah Rosenbaum, who chairs the department of health policy here at the George Washington University School of Public Health and Health Services, warns that “judges give hospitals and insurers vast leeway to exclude, deny or discriminate.” She traces some of the decisions that make today’s health insurance system so problematic, such as Doe v. Mutual of Omaha Insurance Company:

§ The Americans with Disabilities Act (ADA) protects qualified persons with disabilities from discrimination. But an insurer was permitted to carve out an HIV/AIDS exclusion, despite its blatant admission in court that it lacked any actuarial data or reasonable evidence, on the grounds that the ADA does not reach the content of insurance coverage and the insurer could thus bar coverage for HIV treatment. Following Doe v. Mutual of Omaha Insurance Company (1999), insurers today are essentially free to market and sell policies that single out health problems–mental illness, cancer, MS, developmental disabilities in children, you name it–for coverage exclusions.

David C. Vladeck is a law professor at the Georgetown University Law Center, and he focuses on Supreme Court decisions’ effects on the safety of drugs, cars, and other consumer products. He sums up the reasons why consumer safety advocates (not to mention lots of consumers) are concerned:

Americans assume that federal regulatory agencies assure that our drugs, medical devices, cars and other consumer products are safe, and that the tort system deters manufacturers from selling products that pose unreasonable risks and compels them to compensate those injured by defective products. These assumptions are under assault. Not only are public health agencies headed by political appointees committed more to business interests than to public safety but Bush-appointed pro-business judges now dominate the Supreme Court and the federal bench. And the administration is subverting the tort system by claiming that agency actions “pre-empt,” or wipe away, the right to sue. If this trend continues, the public will soon have the worst of both worlds–agencies that don’t protect them and judges who deny them access to the tort system when they are injured.

Actions by Congress and the White House tend to hog the spotlight, but these pieces remind us just how important and far-reaching Supreme Court decisions are.

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