Thursday, July 7, 2011

Erwin Chemerinsky on The Supreme Court Closing the Doors to Justice

Professor Erwin Chermerinsky has a scathing review in a Op-Ed at the LA Times, of the U.S. Supreme Court term just completed.  Chermerinsky concludes that the Court has lost faith in the justice system to resolve the disputes of citizens.   Cherminsky sets out the examples and observes:

• The court ruled that patients who suffer devastating injuries from generic prescription drugs cannot sue the manufacturers for failing to provide adequate warnings even when drug companies making the non-generic versions of the same drugs can be sued on the same basis.

• The court held that standard clauses in consumer contracts calling for arbitration preclude consumers from joining class-action suits even when the effect almost surely would be that no individual lawsuits would be filed because the amount involved was too small.

• The court decided that employees who claim to be victims of sex discrimination cannot sue in class actions when the employer has a policy that prohibits discrimination.

• The court concluded that a man who spent 18 years in prison for a murder that he did not commit could not sue the prosecutors who hid key evidence.

• The court said that taxpayers cannot bring an action in federal court arguing that a state impermissibly established religion by giving tax credits that go almost entirely to religious schools.

• The court held that prisoners convicted in state court cannot obtain a hearing in federal court even when they have new evidence that calls into question their convictions — because of matters such as ineffective defense counsel or failure of prosecutors to turn over evidence — notwithstanding a federal statute that expressly authorizes such hearings.

One way of interpreting these decisions, and others like them, is that the conservative justices are simply pro-business and pro-prosecutor and are denying access to the courts to consumers, employees and criminal defendants. That certainly explains the rulings. But something else that is even more disturbing seems to underlie these rulings: distrust of the courts.

In limiting class-action suits, Justice Antonin Scalia expressed the concern that such litigation terrorizes business and forces them to settle even non-meritorious claims. In precluding suits for money damages by those injured by prescription drugs or those wrongly incarcerated, the court gives little weight to the need for such damages to deter wrongdoing in the future. In denying prisoners the chance to prove the unconstitutionality of their convictions despite a statutory provision expressly allowing for such hearings, the Supreme Court seems distrustful of lower federal courts and worried that they will unjustifiably release dangerous individuals.
[emphasis supplied]
It was a pretty grim term for individuals, citizens, and consumers.  Remember when the Supreme Court was supposed to be looking out for the little guy?  Me either.

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