It is a grim time for the rule of law in the United States. Our Constitution is controlled by the mixture of Republican partisans and conservative ideologues who dominate the Supreme Court. Even before Justice Anthony Kennedy’s retirement turned the Court into a place where liberalism reliably goes to die, the Roberts Court had undermined numerous labor, environmental, consumer, and voting rights laws.
Yet, while many of these decisions are rooted in the Court’s interpretation of the Constitution—and therefore impervious to congressional review—the Court is just as likely to misread an act of Congress as it is to read the Constitution as coextensive with the Republican Party’s national platform. Congress has plenty of power to clarify the intent of the law, through ordinary legislation. In the past, it has used this power extensively. However, Congress has increasingly abdicated its responsibility to correct Supreme Court decisions that butcher federal laws. In the last four decades, the number of federal laws overruling a Supreme Court decision dropped nearly 80 percent, according to a study by law professor Rick Hasen. Congress needs to reverse that trend.
Of course, many of the Roberts Court’s decisions are so poorly reasoned that they appear to be straight-up dishonest. Often, this Court seems to manufacture controversy where none should exist—and then selects the most conservative side of this made-up controversy. Yet, even in these cases, it is worthwhile for Congress to clarify statutes that the Court read disingenuously. If nothing else, doing so will shine a light on the Court’s most political decisions, and force the Court’s Republican majority to choose between surrendering to the will of the people or spending even more political capital on increasingly unbelievable decisions.
So long as Donald Trump occupies the White House, and Mitch McConnell controls the Senate, there’s little chance that Congress will rein in an increasingly rogue Supreme Court. But 2021 will be a new year that will hopefully bring a very different government. Democrats are already thinking about which reforms they will prioritize if they regain control of both elected branches. That agenda should include laws to overturn many of the Supreme Court’s most consequential decisions.
Among the most extreme and legislatively reversible decisions handed down by this Supreme Court are a line of cases permitting companies to defy a broad range of lawsby shunting consumers or workers who are injured by a company into a privatized arbitration system that overwhelmingly favors business interests.
It works something like this: Try buying a cell phone plan, or starting a new job, or even checking your elderly parent into a nursing home. Somewhere in the stack of papers you have to sign to complete this transaction, you will likely find a clause where you give up your right to sue the cell phone company, employer, or nursing home in a real court, and instead agree that all future disputes will be resolved by a private arbitrator.
Oh, and one more thing: If you refuse to sign, the company won’t deal with you at all. If you refuse to sign away your right to sue your employer, you lose your job.
Numerous empirical studies show that individual plaintiffs fare much worse before an arbitrator than they would before a real judge. A study by the Economic Policy Institute, for example, found that employees are far less likely to prevail before an arbitrator, and that they typically receive less money when they do prevail.
The Supreme Court created this forced arbitration regime from the Federal Arbitration Act of 1925, a law that, in Justice Ruth Bader Ginsburg’s words, was supposed to allow “merchants with relatively equal bargaining power” to agree to arbitrate disputes that otherwise could spiral into much more costly litigation. Yet, beginning in the 1980s, the Court began reading this law expansively to apply to contracts between major corporations and much less powerful individuals.
Many of the Court’s recent decisions expanding forced arbitration rest on fabricated legal reasoning without any basis in the law’s text. The Arbitration Act, for example, says nothing whatsoever about class action lawsuits. Nevertheless, in AT&T Mobility v. Concepcion, the Supreme Court held that the Federal Arbitration Act has penumbras, and that these penumbras permit a company to say that it will not do business with you unless you sign away your right to join a class action lawsuit against it.
Other times, however, the Court plays word games, hunting through the Arbitration Act for words that can be read multiple ways, then reading those words selectively to thwart workers’ rights.
Consider the Court’s decisions in Circuit City v. Adams and Epic Systems Corp. v. Lewis, which establish that employers can force their workers to sign away their right to sue under pain of termination. The Court reached this conclusion by holding that the word “commerce” changes meaning, even when it is used twice in the same statute.
Circuit City turned on two related provisions of the Arbitration Act. The first provides that “a written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction” shall generally be enforceable. This is the provision of the Act that prevents courts from striking down many forced arbitration provisions.
The second provision of the Act exempts “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce” from the general rule that arbitration contracts are protected.
In fairness to the Court, the word “commerce” can fairly be read in either of two ways. In 1918, seven years before the Arbitration Act became law, the Supreme Court held that the word “commerce” rarely applies to employment contracts. This narrow reading of “commerce” formed the basis of an infamous Supreme Court decision striking down a federal ban on child labor.
In 1941, however, the Court overruled its child labor decision and held that the word “commerce” should be read more expansively to encompass labor contracts.
Yet, regardless of which definition of “commerce” you prefer, Circuit City and Epic Systems were wrongly decided. If the word means what the Supreme Court said it meant in 1918, then most employment contracts are not a “transaction involving commerce,” and thus the Arbitration Act does not apply to such contracts at all. Alternatively, if you use the modern definition of “commerce,” then all “workers engaged in foreign or interstate commerce,” which means virtually all workers, are exempt from the act.
But Circuit City took a third option. It read the phrase “a transaction involving commerce” under the modern definition, and read the phrase “any other class of workers engaged in foreign or interstate commerce” using the 1918 definition. The general policy favoring forced arbitration is given the broadest scope, while the exemption favoring workers is read narrowly.
There’s an easy fix for this erroneous decision: A bill called the “Arbitration Fairness Act” provides that “no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment dispute, consumer dispute, antitrust dispute, or civil rights dispute.”
The Sherman Antitrust Act of 1890, which forms the backbone of American antitrust law, prohibits “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States.” Yet it leaves it to the courts to determine what, exactly, constitutes “restraint of trade.”Indeed, while antitrust law is technically governed by acts of Congress, the Supreme Court largely treats this area of the law as one where it has free rein. As the Court explained in 1981, “in antitrust, the federal courts enjoy more flexibility and act more as common-law courts than in other areas governed by federal statute.”
The Roberts Court took advantage of this power almost immediately after Justice Samuel Alito’s confirmation banished moderate Republicanism from its bench. Prior to the Court’s 2007 decision in Leegin Creative Leather Products v. PSKS, Inc., the Court followed a nearly century-old rule prohibiting “a vertical agreement between a manufacturer and its distributor to set minimum resale prices.” In Leegin, the Court overruled this absolute prohibition, holding that price-fixing agreements between manufacturers and distributors were, in some cases, lawful.
Leegin built on the work of failed Supreme Court nominee Robert Bork, whose book The Antitrust Paradox may be the single most influential work in American antitrust law. In it, Bork argued that “consumer welfare” should be the sole goal of antitrust law—an argument that, in practice, typically leads courts to uphold anti-competitive practices that reduce consumer prices, at least in the short term.
The danger of Bork’s approach, however, is that it ignores other anti-competitive practices which antitrust law should proscribe. Yes, agreements like the one in Leegin can sometimes reduce prices in the short term, but if too few companies gain too much market power, they may eventually gain the power to jack up prices. And if too few companies gain too much wealth, they don’t just become economic powerhouses. They also become political powerhouses that can distort our nation’s politics in dangerous ways.
The world that Robert Bork imagined quickly becomes a world where Amazon can bully suppliers into submission or insolvency. It is a world where the entire field of journalism rises or falls based on a tweak to Facebook’s algorithm. And it is a world where the illusion of competition replaces the reality. If you drank a craft beer in the last month, there’s a very high chance the brewery was owned by InBev, the parent company of Anheuser-Busch.
The choice of how to balance difficult questions like “Are lower prices now worth the risk of one company wielding too much power later?” should not be left to the one unelected branch of government. And it certainly shouldn’t be left up to the same Court that gave us Citizens United. If Congress does not step in to restore more meaningful competition to the marketplace, there’s little chance that the Court will do so.
There is also a fix to this misreading of the antitrust laws. Congress can clarify what counts as an anti-competitive abuse, making clear that a short-term test of consumer welfare defined as pricing should not be the sole test.
The Executive Branch
One of the executive branch’s most important powers is the ability to promulgate regulations implementing federal statutes. While some laws are complete in and of themselves, others set out a broad policy, then task a federal agency with implementing the details of that policy and adapting those details to new developments.
The Clean Air Act, for example, requires certain power plants to use “the best system of emission reduction” that is both technologically and economically sound. So Congress determined, when it enacted the Clean Air Act, that power plants should constantly improve as society discovers cleaner ways of generating power. But it is up to the Environmental Protection Agency to monitor new technology and to continuously update regulations which tell these power plants what they must do to comply with the law.
Ideology inevitably seeps into this regulatory process. Democratic administrations will tend to regulate business more aggressively, while Republican administrations will tend to hold off on regulations that could easily be justified by a statute—or even roll back existing regulations.
Which brings us to the Chevron Doctrine.
Chevron v. Natural Resources Defense Council is the Supreme Court’s answer to ambiguous statutes that may or may not authorize an agency to promulgate a particular regulation. In Chevron, the Court held that judges should defer to an agency’s reading of such a statute so long as “the agency’s answer is based on a permissible construction of the statute.”
The reason for this deference is twofold. When a federal law is ambiguous, agencies that specialize in that particular area of the law are more likely to read it correctly than a panel of judges who, by their very nature, are legal generalists. Additionally, Chevron is a doctrine of judicial humility.
“While agencies are not directly accountable to the people,” Justice John Paul Stevens wrote in Chevron, “the Chief Executive is.” Thus, it is better for a democratically accountable agency to make policy choices, if the other alternative is leaving this decision up to judges with lifetime appointments and no accountability to the voters.
Chevron was handed down in 1984, just a few months before President Ronald Reagan’s landslide reelection victory, and it was generally viewed favorably by conservatives for this reason. After all, in the 1980s, a doctrine requiring courts to defer to federal agencies meant that those courts had to defer to Reagan’s agencies and their deregulatory agenda.
In the Obama years, however, the conservative Federalist Society—an influential legal group that plays a major role in selecting Donald Trump’s judicial nominees—grew obsessed with limiting agency power and abolishing doctrines like Chevron. It’s not hard to guess why. Thanks to the hardball tactics that locked Chief Judge Merrick Garland out of the Supreme Court, Republicans are likely to control the Court for a generation or more. So why would Republicans want that Court to defer to a branch that is likely to be controlled by Democrats at least half of the time?
Chevron is on its last legs. In the 2015 case of King v. Burwell, the Court sharply limited it, holding that its doctrine does not apply to questions of “deep ‘economic and political significance’” that are “central” to a statutory scheme. Some of the Court’s Republicans outright called for Chevron to be overruled. At least one would eliminate agencies’ power to promulgate meaningful regulations of any kind.
In a world without Chevron, the Supreme Court will transform into a kind of board of censors—free to strike down many Democratic regulations at will while holding their fire whenever a Republican administration takes action. The Roberts Court, in other words, is conducting a wholesale transfer of power from the executive branch to the judiciary, and that transfer of power will give Republicans on the Supreme Court a powerful trump card.
Congress, however, can stop this power grab. In theory, this can be done by paying greater attention to how it drafts statutes, and removing ambiguity whenever possible. In practice, however, it is impossible for lawmakers to anticipate every scenario that may arise under a particular statute, and draft it so precisely that ambiguities will never arise. For this reason, Congress should codify the rule that, when a statute authorizing an agency to regulate is ambiguous, courts should defer to the agency’s reading of that statute unless the law cannot reasonably be read as the agency suggests.
If Congress does not act, the Court will rapidly grow into the most powerful institution in the United States, vetoing regulations that its Republican majority disapproves of, while simultaneously giving the thumbs-up to the deregulatory actions of Republican administrations.
Any piece calling on Congress to overrule a raft of wrongly decided Supreme Court cases is incomplete if it does not address the Court’s anti-canonical decision in Shelby County v. Holder. Shelby County, which struck down a key provision of the Voting Rights Act, is one of the most egregiously reasoned decisions of the Roberts era. Much of the opinion rests on the idea that the United States is no longer racist enough to justify a fully operational Voting Rights Act.
Just over three years after the Court declared racism to be not that big a deal in American elections, Donald Trump became president.
Before Shelby County, the Voting Rights Act required many states and localities with a history of racial voter discrimination to “preclear” new voting rules with officials in Washington, D.C., before those rules could take effect. In a party-line vote, the Court held that this preclearance regime is “a dramatic departure from the principle that all States enjoy equal sovereignty” which cannot be justified in the less racist America that Republicans on the Supreme Court imagine that we live in.
The one silver lining in Shelby County is that it leaves the door open to a future act of Congress restoring the Voting Rights Act. According to the Court’s Republicans, the problem with the Voting Rights Act is that it singled out states for preclearance based on the states’ past behavior. “Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions,” Chief Justice John Roberts wrote for the Court. So, in theory, Congress could restore the preclearance regime by updating the law to single out states with a more recent history of voter suppression.
Shelby County is so poorly reasoned, and so out of step with prior decisions, that it remains to be seen whether the Roberts Court will permit such an updated law to go into effect—when a court hands down a decision as dubious as the one in Shelby County, it’s normal to suspect that its judges were acting in bad faith.
Nevertheless, given the proliferation of voter suppression laws enacted by Republican state governments, it is worthwhile for Congress to take the Court at its word and attempt a fix for Shelby County. Failure to do so would ensure that candidates like Donald Trump have a structural advantage for many elections to come.
To their credit, Democrats in Congress understand that combating voter suppression must be a top priority—after all, their own jobs are on the chopping block if the GOP succeeds in depressing turnout among voters of color. The leading proposal to restore the Voting Rights Act, known as the Voting Rights Amendment Act, would require states that committed a significant number of voting rights violations in the last 25 years to preclear new voting rights, and it would also make it easier to bring additional states under the preclearance umbrella.
Should this bill become law, it is not only likely to rein in abuses by states like Texas, and Alabama—whose history of voter suppression stretches back to Jim Crow—but also to catch states like Wisconsin, which became a voter suppression pioneer in the last decade.
Other Forms of Discrimination
Various federal laws prohibit employment discrimination on the basis of race, sex, religion, age, disability, and other protected criteria. Yet, while these laws announce that such discrimination is forbidden, they often raise as many questions as they answer.
How does one prove that their boss acted with racist intent, for example, when they lack the ability to read their boss’s mind? How pervasively must sexual harassment infect a workplace before it amounts to gender discrimination? What if a worker is fired for a combination of several reasons, one of which is the fact that their boss hates Jews?
Past Supreme Courts, which were less hostile to civil rights, answered these questions in ways that facilitated the overarching goal of ending discrimination. In many cases, for example, a victim of employment discrimination can prevail if they show that their employer implemented a policy which has a “disparate impact” on people of color. Other decisions permit victims of “mixed motive” discrimination—where racism, sexism, or other such bigotry is one of several reasons why their boss targeted them—to still prevail against their employer.
The Roberts Court, however, appears determined to shrink anti-discrimination laws until they can be drowned in a bathtub. In University of Texas Southwestern Medical Center v. Nassar, the Court abolished mixed-motive suits for workers who face retaliation after they file a civil rights complaint. It did the same to victims of age discrimination in Gross v. FBL Financial Services.
Similarly, in Vance v. Ball State University, the Court effectively gutted a rule preventing supervisors from sexually or racially harassing their subordinates by defining the word “supervisor” so narrowly that few bosses in modern companies will qualify. These decisions had nothing to do with the Constitution—they were just a conservative Court’s decision that federal civil rights laws should be read narrowly.
Now that Brett Kavanaugh occupies a seat on the Supreme Court, moreover, the Court’s attacks on civil rights laws are likely to accelerate. In Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, for example, four justices claimed that the federal Fair Housing Act does not permit disparate-impact lawsuits. Retired Justice Anthony Kennedy voted with the liberals to save the Fair Housing Act, but Kennedy is no longer around to do so in future cases.
The lesson from these decisions is that Congress can no longer count on the Court to act as its partner in fighting discrimination. Indeed, if anything, the Court has become a Jobian adversary, seeking out ways to thwart civil rights laws at every pass.
It is incumbent on Congress, in other words, to make it absolutely clear that traditional civil rights protections such as disparate-impact litigation and mixed-motive suits are available to victims of discrimination. If the Court sees any opportunity to undermine these protections, it will.
Until very recently, the Supreme Court struck a careful balance between the interests of people of faith and those of, well, everyone else in society. Religious people have long enjoyed a robust right to practice their faith, but they could not wield that faith as a sword to cut down the rights of others. As the Supreme Court held in United States v. Lee, “when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”
A federal law known as the Religious Freedom Restoration Act (RFRA) was supposed to preserve this careful balance. Among other things, RFRA explicitly states that its purpose is to enshrine in federal law some of the Supreme Court’s older First Amendment decisions that respected this balance.
Nevertheless, the Court held for the very first time in Burwell v. Hobby Lobby that a religious objector may use that objection to restrict the rights of others—in that case, the right of a woman to have an employer-provided health plan that covers birth control.
In a brief passage that is almost entirely devoid of legal reasoning, Justice Samuel Alito claimed that a 2000 amendment to RFRA was “an obvious effort to effect a complete separation from First Amendment case law.” Then, having divorced RFRA from Congress’s explicitly stated purpose, Alito transformed RFRA into something that Congress never intended.
Overturning Hobby Lobby is a fraught exercise. Because the First Amendment also protects the “free exercise” of religion, the Supreme Court could retaliate against a law attacking Hobby Lobby by simply reinterpreting the First Amendment to require the same result. Indeed, the Court’s Republican majority appears eager to rewrite the First Amendment to allow religious business owners to discriminate against LGBT Americans—regardless of what Congress does to stop them.
Nevertheless, overturning Hobby Lobby’s misreading of RFRA is a worthwhile project, especially if it is part of a broader bill reversing many of the Court’s statutory decisions.
Court-Packing or Court-Spanking?
Since Brett Kavanaugh joined its bench, the Supreme Court has largely avoided politically charged cases involving matters such as abortion or LGBT rights. Among veteran Court-watchers, there is widespread speculation that Chief Justice Roberts was spooked by the partisan nihilism that placed Kavanaugh on the nation’s highest court. And that, at least for now, Roberts is guiding the Court to avoid cases that could diminish its political capital.
The Supreme Court, in other words, does sometimes respond to political pressure. If Congress deals the Court a swift spanking, Roberts may decide that the best course is to moderate. And such moderation would not just be good for the country; it would be good for the Court as well. It would prevent the Court’s Republican majority from handing down so many partisan decisions that Democrats need to resort to nuclear tactics such as court-packing.
Thus, the best reason to overturn past Supreme Court decisions isn’t just that it will wipe bad decisions from the books; it is that Congress could potentially deter future decisions that undermine progressive values. It could ensure that power rests with the people’s representatives, and not with five unelected Republican men.