There seems to be lots of, shall we say, interesting things happening inside courtrooms these days. The Supreme Court has been a fountain of pretty outrageous decisions lately so their latest was really no surprise, especially when you consider that the case involved another chance for the Roberts’ Court to further empower businesses and corporations at the expense of workers and consumers.
The case involved workers at Lamps Plus who had their personal tax information hacked from the company’s systems and then, in at least one case, used to file a fraudulent tax return. That employee then sued the company in a class action suit on behalf of all the workers who had their information stolen. Lamps Plus fought the case, claiming that the forced arbitration agreement that all employees are required to sign prohibits a class action suit and requires each employee to pursue their own claim individually under arbitration, despite the fact that the agreement does not specifically address the issue of class action suits. In the usual 5–4 decision with the conservative justice providing the majority, the Court sided with Lamps Plus.
Forced arbitration agreements essentially force workers and consumers to give up their legal rights in order to gain employment or use products. They effectively insulate businesses and corporations from accountability. Arbitration proceedings are stacked in favor of corporations and the removal of the ability to use class action suits encourages business to literally steal small amounts from a large number of individuals, knowing that individually the cost of going to arbitration is not worth it.
The legal basis for these forced arbitration contracts have been created out of whole cloth by conservative Supreme Court justices over the last 20 years, in total contradiction of the actual words and meaning of the 1925 Federal Arbitration Act (FAA) that created arbitration agreements originally.
The FAA clearly states that “workers engaged in foreign or interstate commerce” would be exempt from compulsory and binding arbitration. In 2000, the Supreme Court, in the customary 5–4 conservative decision, simply eliminated that provision. The FAA says nothing about class action suits. But in 2010, the Supreme Court, in a 5–4 decision, ruled that arbitration agreements that ban class action suits were perfectly valid. Finally, in 2018, in another 5–4 decision, the Supreme Court ruled that companies can not only make forced arbitration agreements a condition of employment but also force employees to waive their right for redress in a court of law in disputes with management, essentially gutting one of the core pillars of the National Labor Relations Act of 1935 that provided workers the ability to join together for “mutual aid and protection” from corporate power.
The Lamps Plus decision adds to the erosion of the rights of workers and consumers by ruling that, by its very nature, forced arbitration agreements forbid class action suits. A bad as the ruling is, the logic that the majority used to arrive at the decision is even more chilling. According to Justice Roberts, “courts may not infer consent to participate in class arbitration absent an affirmative ‘contractual basis for concluding that the party agreed to do so’…Silence is not enough…That reasoning controls here. Like silence, ambiguity does not provide a sufficient basis to conclude that parties to an arbitration agreement agreed to ‘sacrifice[ ] the principal advantage of arbitration’…[T]he foundational FAA principle that arbitration is a matter of consent”.
Roberts statements are truly Orwellian. The Lamps Plus employees are supposed to understand that the arbitration agreement they sign forbids class action suits despite the fact that such suits are never mentioned in the agreement. And they are doing this of their own “consent” despite the fact that they will not get the job if they refuse to sign the agreement. It is equivalent to a blackmailer claiming the ransom was just a gift given with consent by the one being blackmailed.
Meanwhile, down at the Republican Star Chamber known as the Fifth Circuit, the Court of Appeals has ruled that a police officer seriously injured during a protest against the shooting of Alton Sterling can sue the Black Live Matter’s activist DeRay McKesson for negligence. McKesson is not accused of being the individual who threw a brick or rock that injured the officer or instructing the demonstrators to in any way engage in violence. But the Court ruled that, by leading the protest that closed a public road, McKesson should have foreseen the potential dangers. Said the Court, “Given the intentional lawlessness of this aspect of the demonstration, Mckesson should have known that leading the demonstrators onto a busy highway was most nearly certain to provoke a confrontation between police and the mass of demonstrators, and not withstanding, did so anyway. By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration”. The Court made no ruling on McKesson’s guilt or innocence in the suit, only that the suit should be allowed to go forward.
Needless to say, the implication for the right to protest in this decision is pretty chilling. The fact that protest leaders can now be sued for actions they did not direct during the course of a demonstration is going to make them at least consider the potential significant legal costs they may incur. Any simple violation of law by the protesters, such as not keeping marchers on the sidewalk that resulted in some random injury, could impose legal costs on the organizers. In addition, it is also liable to actually increase violence at protests because counter-protesters would know that any damage or violence could result in significant legal costs for their opponent’s organizers.
As Ian Millhiser points out, the Supreme Court has previously ruled that “civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence” unless that individual directed such illegal activity. The Fifth Circuit, typically, ignored this existing precedent. This is part of a broader Republican desire to cut down on the right of protest and civil disobedience. In 2017, there were several abortive attempts to pass laws that provide immunity for drivers who injure protestors who are blocking roads unless it can be shown they intended to harm the protestor. The laws were basically the driving equivalent of “stand your ground”. Thankfully, none of those bills passed and the issue faded away after the murder of Heather Heyer in Charlottesville. But, as we see here in the Fifth Circuit, the desire to restrict civil disobedience by holding protest leaders liable is still a strong GOP desire.
Finally, there is the strange case in Massachusetts where a state judge and a court officer have been charged with obstruction of justice by the US Attorney for helping an undocumented immigrant evade an attempt by ICE to arrest him at the state courthouse. Apparently, the judge in the case discovered that ICE had two plainsclothed officers in the court prepared to arrest the defendant at the conclusion of his hearing. The judge ordered the ICE officers out of the courtroom and apparently conspired with the defense counsel and prosecutor in a conversation not recorded by the court reporter to allow the defendant to be released to supposedly pick up personal effects in another part of the courthouse, where the court officer allowed the defendant to leave by a back door and escape ICE arrest.
This is just an escalation in the continuing war between the states and ICE and the battle over ICE courthouse arrests. As 70 ex-judges wrote in a letter opposing courthouse arrests, “Surveys of law enforcement and legal service providers confirm that ICE’s reliance on immigration arrests in courthouses instills fear in clients and deters them from seeking justice in a court building”. Massachusetts Attorney General Maura Healey declared the obstruction charges “a radical and politically-motivated attack on our state and the independence of our courts…It is a bedrock principle of our constitutional system that federal prosecutors should not recklessly interfere with the operation of state courts and their administration of justice”.
Another interesting aspect of this case actually applies to the Mueller report, believe it or not. As Steve Vladeck notes, “The thing about the Justice Department indicting Judge Joseph for obstruction in the Massachusetts ICE case is that it underscores just how broadly the federal government (usually) reads the federal obstruction statute”. Compare that to how narrowly Mueller reviewed the obstruction charges against Trump and, for that matter, conspiracy as well.
The one through thread of these “interesting” court actions is the diminution of power for individual citizens and consumers. It will be harder to hold companies accountable for wrongdoing. It will be harder to engage in civil disobedience. And it will be harder and more dangerous for undocumented immigrants to receive justice and for states to try and provide that. And we will all be just a little less free.