Recent SCOTUS Case news

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SCOTUS Misses an Opportunity to Gut Class Actions and Consumer Privacy Laws
By Mark Joseph Stern

Justice Samuel Alito enjoys gutting class actions and preventing consumers from suing corporations—but in Spokeo v. Robins, he had to settle for a punt.

Chip Somodevilla/Getty Images

Spokeo Inc. v. Robins was supposed to be one of those cases that lets the Supreme Court’s conservatives gut class-action rules without most people noticing. What, you don’t remember AT&T Mobility v. Concepcion? How aboutAmerican Express v. Italian Colors? Well, they remember you, and they are why it’s so difficult for you to bring legal claims against corporations to court. Cheated by your phone company? Screwed over by your credit card service? Too bad! The Supreme Court’s conservative wing spent the past decade using such cases—cloaked, as they are, in tedious complexity—to quietly hobble class actions.

MARK JOSEPH STERN
Mark Joseph Stern is a writer forSlate. He covers the law and LGBTQ issues.

Initially, Spokeo seemed destined to follow this trend. Instead, with the Conservative Five down a member, the court punted—thereby allowing a critically important form of class action to survive.

At bottom, Spokeo is a case about harm. Spokeo runs a somewhat dystopian-sounding “people search engine,” gathering globs of data from the internet about individuals, then compiling it on a searchable website. If you have ever used the search engine, you will know that a sizable amount of its information is incorrect. My entry gets my address wrong, for instance, though it does nail my zodiac sign. Thomas Robins was also saddled with a flawed Spokeo entry: The website botched his age, education, employment status, and details of his personal life—presenting, he believed, an unflattering portrait to potential employers. Robins sued, alleging the misinformation harmed his employment opportunities. And he filed his case as a class action on behalf of everyone else who was harmed by Spokeo’s negligent misreporting.

The big fear in Spokeo was that the Supreme Court’s five conservatives would rule that Robins—and, by extension, the class of similarly situated people—weren’t reallyharmed in a constitutional sense. Article III of the Constitution gives federal courts the authority to rule on any “case or controversy,” and the court has interpreted that ambiguous language quite stringently. A plaintiff only has “standing” to sue in federal court if she suffers a “real world” harm, a “concrete and particularized injury.”

Spokeo insists that Robins and his class do not meet this constitutional level of harm—at least absent a clear showing that the website’s mistakes truly injured them. Robins, however, points to a federal law that requires websites to “follow reasonable procedures to ensure maximum possible accuracy” of information used in credit reporting, which Spokeo’s information is. That law explicitly gives consumers a cause of action to sue in federal court when companies negligently violate the law, as Spokeo allegedly did.

But Spokeo says a federal law is not enough: Even thoughCongress gave consumers a right to sue the website in court, Article III still bars the suit if the plaintiffs cannot show a particularized injury. Spokeo’s mere violation of federal law doesn’t open it up to lawsuits, the company argues; only individuals who can demonstrate real-world harm get to sue the website in federal court. Put differently, Spokeo asserts that Congress cannot create standing where the Supreme Court says standing does not already exist.

Pretty much everybody agreed that Spokeo was fated to win this case, scoring another blow against class actions and consumer privacy. Then Justice Antonin Scalia died and all bets were off. With the court’s four liberals holding firm, it was apparent that the justices were scrambling to avoid a 4–4 tie.

On Monday, they revealed their solution: A big old punt that essentially freed the court from having to reach a final decision. In a brief opinion, six justices concluded that the lower court did not sufficiently analyze the standing question. Specifically, the majority found that the lower court had given short shrift to the question of “concreteness.” An injury, the majority says, must be “ ‘real,’ and not ‘abstract.’ ” The harm might be “intangible,” but it still has to be a “de facto injury.” Congress has a role in “identifying and elevating intangible harms” through statutes, but courts still must independently ask whether an intangible harm is an “injury in fact.”

If that melts your brain, don’t worry: It’s more of a nitpicky distinction than a crucial legal contrast, unlikely to have any significant impact. The lower court here is the 9thCircuit, whose liberal judges will probably find that Robins and his class have, indeed, alleged a concrete injury. Spokeo may then wind up at the Supreme Court yet again. And with any luck, at that point, a full court of nine justices will be able to dispose of this case properly rather than tossing it around like a misbegotten hot potato.

Without Scalia, SCOTUS Can’t Gut Class Actions and Consumer Privacy Laws

 

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The U.S. Supreme Court's Nonsense Ruling in Zubik
The challenge from religious non-profits to Obamacare’s contraceptive mandate got sent back down to the lower courts, creating a lot of uncertainty.

One of the Little Sisters of the Poor, a religious non-profit group suing the U.S. government over the Affordable Care Act's contraceptive mandate, after oral arguments before the Supreme Court in MarchJoshua Roberts / Reuters

In Stanley Kubrick’s 1968 film, 2001: A Space Odyssey, the only survivor of a disastrous Jupiter space mission disassembles the spacecraft’s rogue computer, HAL, which has been killing the crew. As the astronaut disconnects HAL’s memory units, the once omniscient computer sings “Daisy, Daisy,” and then falls silent forever.

The United States Supreme Court, whose Oz-like roar until recently terrified all who heard, is now short a justice and is slowly coming undone. Its voice from the bench, like HAL’s, is slowing and blurring.

The Court’s per curiam “decision” in Zubik v. Burwell, announced Monday, is the latest evidence of its slide toward paralysis. Zubik, one of the most closely watched cases of the 2015-16 term, was a religious-freedom challenge by a group of religious non-profits to the Affordable Care Act’s contraceptive mandate. Under regulations issued by the Department of Health and Human Services, the non-profits were required to notify the government that they object to providing their employees with insurance coverage for contraceptives. The government would then order the non-profits’ insurers to provide the coverage as part of the employee policy, at no cost to the employer.


The Supreme Court's Punt on the Contraception Mandate

It’s a very substantial accommodation—so serious, in fact, the Court itself, in the 2014 case of Burwell v. Hobby Lobby Stores, ordered the government to offer the very same accommodation to for-profit employers with religious objections to contraceptive coverage. That, the Court suggested, would avoid any violation of the Religious Freedom Restoration Act, which requires that the government not “substantially burden” religious practice unless the “burden” is “narrowly tailored” to advance a “compelling governmental interest.” But inZubik, the non-profits insisted that even that arrangement violates RFRA, because employees would still get contraceptive coverage through their existing insurance. This meant the government was “hijacking” the employers’ policies, they said, placing a “substantial burden” on their religious beliefs. (Paul Clement, a lawyer for the challengers, told the Court solemnly that the “accommodation” was every bit as oppressive as requiring Catholic nuns to operate a birth-control clinic in their convent.) The government, and many advocacy groups, responded that an accommodation was one thing; the demand for an exemption even from asking for an accommodation was a radical escalation of the idea of religious freedom.

The dispute is an important one, not only for the thousands of employees who work for religious hospitals, service agencies, and charities, but for the very notion of “free exercise” of religion in the post-Hobby Lobby world. The challengers seemed on track to punch a large hole in the government’s power to enact all kinds of federal social, economic, and welfare programs.


But not long before argument, Justice Antonin Scalia died. The Court now seemed likely to split 4-4, which would have left the program intact in the seven circuits where the cases arose. (All the cases before the Court had been victories for the government in courts below; after cert. was granted, the Eighth Circuit reached a contrary conclusion.) In seeming desperation after oral argument, the justices issued an extraordinary “supplementary briefing” order. In the order, the Court proposed its own settlement of the dispute and asked if that would make everybody happy. The new plan would be for employers to tell their insurers they don’twant their plan to cover contraceptive coverage. The insurers would then turn around and offer the employees … contraceptive coverage though the plan, at no cost to the insurers. Thus the employers would not have to sully themselves by asking for an exemption, and the employees would still get their coverage.

The parties responded last month, and on Monday the Court basically held in favor of itself, proclaiming that “oth the petitioners and the government now confirm that such an option is feasible.” But rather than order the “compromise” put into place, the Court sent all the cases back to their respective courts of appeals, with instructions to give the parties “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’”

This sounds like a draw, but it isn’t exactly. Concealed in the Court’s oracular language is a tentative but important win for the government.

In their supplemental brief, the challengers said they were perfectly happy with the Court’s “compromise” plan—as long as contraceptive coverage was “provided through a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source.” This segregation of contraception, however, was precisely what the government was seeking to avoid. It had argued that contraceptive coverage must be “seamless,” offered as part of the regular coverage. Government studies show that this is needed to make sure that women are actually able to use the benefit, without paying a separate premium or needing to find a different provider—both of which reduce their usage of contraception significantly.


Concealed in the Court’s oracular language is a tentative but important win for the government.

A couple of the male justices suggested at argument that maybe women’s reproductive health care ought to just be cut out of “normal” health policies and women should be required to buy a special birth-control policy and pay out of their own pockets.

However, the Court’s opinion Monday contains the following language: “The Government has confirmed that the challenged procedures . . . could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”

As Justice Sonia Sotomayor points out in a special concurrence to the Court’s “per curiam” order, the language suggests that courts below should notapprove any settlement that does not provide “seamless” coverage. In addition, she notes, the “contraceptives only” policies that some Justices wondered about “do not currently exist,” and may very well not be permitted under federal law.

The Court did not enter an order; instead it sent the cases back to the circuits, basically to allow the parties to negotiate. And the Court indicated that there’s no hurry to wind up the talks. Right now, it pointed out, the employees arereceiving the coverage under an interim order issued in 2014. And the government will not be allowed to issue fines and penalties against the employers until the case is resolved.

Thus the challengers face a kind of prisoners’ dilemma: settle now, with a victory for the government on the table, or stall until an unknown new president arrives to appoint an unknown new justice.

No matter who appoints the next justice, however, the issue will be back in some form. The Court’s order carefully does not resolve the true statutory issues, which are: (1) Is merely filling out a form stating an objection truly a “substantial” burden on religious rights? (No case supports that idea.) (2) Is providing “seamless” contraceptive care a “compelling governmental interest”? (The Hobby Lobby majority seemed skeptical that contraception was all that important.) And (3) is the “mandate” the “least restrictive means” of achieving that “interest”?

At the beginning of this term, the conservative agenda seemed clear: dismantle affirmative action and public-employee unions, and fashion RFRA into a tool that would allow anyone—corporation, church, or individual—to opt out of the regulatory state at any time for any reason. In these high-profile cases, definitive resolution seemed, for better or worse, to be in the offing.

Public-employee unions have survived; the contraception mandate also seems to have also staggered through this term. It’s unclear what will happen on affirmative action, but the Court seems no more likely to be definitive there than it has been in the latter two.

Now these battles will continue as the parties debate the Court’s oblique words and unsettled reasoning.

“A Bicycle Built for Two” may not be far off.

Why the U.S. Supreme Court's Issued a Nonsense Ruling on the Obamacare Contraceptive Mandate

 

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LGBT Rights Just Won An Unexpected Victory Despite Clarence Thomas
BY IAN MILLHISER MAY 16, 2016 2:39 PM

CREDIT: AP PHOTO/MICHAEL DWYER



On the surface, United Student Aid Funds v. Bible has nothing to do with LGBT rights. It’s a case involving a very technical dispute about student loan repayments, collection costs for borrowers who default, and how to interpret the Education Department’s regulations on this subject. The Court announced that it would not hear the Bible case on Monday, over the dissent of Justice Clarence Thomas.

Yet, just a few months ago — before Justice Antonin Scalia’s death deprived the Court’s conservative bloc of its majority — Bible was exactly the sort of case that bloc could have used to bring about a sweeping change in how the judiciary treats federal agencies. And that, in turn, could have handed an unexpected victory to anti-LGBT lawmakers who want to regulate where transgender individuals get to pee.

To explain, Bible (the case is named after a debtor named “Bryana Bible,” not the Judeo-Christian holy book) concerns the degree of deference courts owe to agencies when they are confronted with ambiguous regulations. When a law is ambiguous, the Supreme Court held in Chevron v. Natural Resources Defense Council, courts owe great deference to how executive branch agencies interpret that law in their own regulations.

As Justice John Paul Stevens explained in Chevron, such deference is appropriate for two reasons. “Judges are not experts in the field,” Stevens wrote, while agencies typically possess a great deal of expertise in the areas they regulate. Deference to agencies also promotes democratic ends because the agencies are not entirely removed from the electorate in the same way that judges with lifetime appointments are. “While agencies are not directly accountable to the people, the Chief Executive is,” Stevens explained, and most agencies are accountable to the president.

Sometimes, however, an agency drafts regulations that are themselves ambiguous. When that happens, Justice Antonin Scalia explained in Auer v. Robbins, courts should also defer to the agency’s interpretation of its own regulation unless that interpretation is “plainly erroneous or inconsistent with the regulation.”

This doctrine of Auer deference formed the backbone of a federal appeals court’s recent decision holding that schools must allow trans individuals to use the bathroom that corresponds with their gender identity. That decision deferred to the Education Department’s interpretation of its own regulations governing gender-segregated bathrooms. Without Auer deference, it’s possible that the trans bathroom case would have come down differently.

Chevron, it should be noted, is one of the most important and widely cited cases in federal administrative law. Nevertheless, conservatives began to lose faith in the idea that courts should defer to federal agencies around the same time that the Obama family moved into a home at 1600 Pennsylvania Ave.

Indeed, Auer deference is even more out of favor with conservatives than Chevron deference. As Thomas notes in his opinion calling for the Court to use the Bible case to “reevaluate” Auer, three current members of the Court — himself, Chief Justice John Roberts and Justice Samuel Alito — have “called for its reconsideration in an appropriate case.” Before his death, Justice Scalia joined these calls, even though Scalia authored the Court’s unanimous opinion in Auer.

If Scalia were still alive, in other words, that would be four votes to hear Bible. Under the Court’s rules, moreover, it only takes four votes for the justices to take up a case. Once the case was argued, the four most conservative justices would only need to convince the slightly-more-moderate-but-still-really-conservative Justice Anthony Kennedy to join them in order to overruleAuer.

If that happened, it would be a massive transfer of power from agency officials accountable to an elected president towards unelected judges. And one of the most immediate impacts would be that such a decision would give anti-trans lawmakers a powerful new weapon to wield in the war over bathrooms.

Instead, Bible will be remembered, if at all, for a short dissenting opinion joined by only one justice. It is likely that it would have ended differently if Justice Scalia were still around to back up his fellow Auer skeptics.

LGBT Rights Just Won An Unexpected Victory Despite Clarence Thomas

 

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