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Monday’s decisions in Plain English

If you read the blog regularly, you probably know that the Justices announce opinions in reverse order of seniority.  Some days, like Monday, that tradition leaves us on tenterhooks (because many Court-watchers believe that the Chief is writing that opinion).  And sometimes it means that the Court saves the best for last:  Monday, after announcing three important but less visible opinions, Justice Scalia (second in seniority only to the Chief) proclaimed, “The Court has decided the case of Wal-Mart v. Dukes.”

The news media went wild.  Here’s why:   Wal-Mart was one of the most anticipated cases of the Term, because of its effect on class action litigation and big business defense.  Let’s discuss.

First, you’ve probably heard that the Wal-Mart litigation was the biggest class action lawsuit in history (with “was” being the operative word here, because the Court’s decision effectively ended the case in its current form).  Approximately one million female Wal-Mart employees joined together to sue the chain, arguing that the chain had discriminated against its female employees all over the country in the way that it paid and promoted them.

In understanding the Wal-Mart decision, it’s important to keep in mind what the Court did not do (and which we hadn’t expected the Court to do):  the Court was not deciding whether the company had in fact discriminated against its female employees.  Instead, it held only that their lawsuit against the store could not continue as a class action (for more on how class action works, see my Plain English post from March 31). All nine Justices agreed that the suit was improper under the rules that govern class actions, in part because the women sought backpay and other money damages.   On the other hand, only five Justices (the ones typically regarded as the Court’s more “conservative” members) agreed that the plaintiffs did not have enough in common to form a class; essentially, they could not show that Wal-Mart had a companywide policy or a corporate culture of discriminating against women, in part because the company was so large and spread out, with individual regions and managers having discretion to make employment decisions.

Justice Ginsburg, joined by Justices Sotomayor, Kagan, and Breyer,  disagreed with the majority.  In her dissent, Justice Ginsburg (a former women’s rights attorney and the Court’s gender discrimination expert) argued that the female employees had shown enough evidence of a pattern of discrimination throughout the company that they could properly form a class, even if they could not bring a class action under the particular rule on which they had relied.

The Court’s decision in Wal-Mart was, to put it mildly, good news for big business.  That’s because the opinion here is likely to limit future class action suits against large companies like Wal-Mart. But the win for “Goliath” will require “Davids” like Betty Dukes and her co-workers to to bring their claims individually or in much smaller classes. That’s a big problem:  Litigation is costly and expensive, especially against a corporate giant like Wal-mart; many of the women (most hourly workers) may not be able to bring their own cases.  That’s why – even though the Court never actually determined whether Wal-Mart had discriminated against its female employers –women’s rights organizations have been speaking out against the opinion over the last twenty-four hours.

Probably the second biggest case of the day, American Electric Power Co. v. Connecticut had a major legal impact on global warming regulation.  You may remember that, three Terms ago, the Court decided Massachusetts v. EPA, holding that the Clean Air Act covered carbon dioxide emissions and that the Environmental Protection Agency (EPA) could therefore decide whether or not to regulate them.  In this follow-up case, a group of plaintiffs that included several states sued five electric-power companies, which together are responsible for nearly ten percent of all human emissions of carbon dioxide in the United States.  The plaintiffs argued that the carbon-dioxide emissions were a “public nuisance” – an offense that injures the community rather than individuals – and asked the court to order the power companies to reduce their emissions.  The court of appeals would have allowed the case to move forward, but on Monday the Supreme Court reversed.

The Court first split four to four (with Justice Sotomayor recused because she had participated in the case as a judge on the Second Circuit) on the question of whether the plaintiffs even had a right to sue.  Because the Second Circuit had held that they did, that ruling was affirmed by an equally divided Court, but it will not have the force of law in the rest of the country.  Next, however, the Court reversed the Second Circuit’s holding that the federal courts could set a cap on carbon dioxide emissions.   Here’s why.

The EPA has agreed to make a final decision about whether it will issue final regulations by May 2012; because that decision (and possible regulations) are forthcoming and would cover the emissions issue, the Court explained, the courts could not grant a “common law” (or judge-made) remedy.   This approach makes sense, the Court explained, because the EPA – as an expert on issues related to the environment – is in a better position to address (and, if necessary, cap) emissions than individual district judges.

What if EPA declines to issue regulations about greenhouse gas emissions?  Then, the Court said, states or other groups injured by the emissions could sue to ask the courts to decide just what the Clean Air Act requires.  But, the Court explained, federal courts cannot act on their own to make law when other branches of government – here, Congress and EPA – have passed laws and enacted regulations.

As I’ve commented often, the Justices are generalists.   A huge variety of cases make their way to the Court, resulting in decision days like Monday, when we get opinions all along the legal spectrum.  In Turner v. Rogers, the Court decided an issue entirely unrelated to class action litigation or greenhouse gasses; here, the Justices considered the right to an attorney in a civil contempt case.

In this case, Michael Turner, a father in South Carolina, ended up in court  — without a lawyer to represent him – after he failed to pay over five thousand dollars in child support.  The family court judge found him to be in contempt of court and sentenced him to prison for twelve months.  Turner appealed, arguing that he had a constitutional right to have a lawyer appointed to represent him, just like a criminal defendant would have, because he faced the possibility of a prison sentence.

The South Carolina Supreme Court rejected Turner’s argument, but the Court’s answer was more complicated.   In the end, it took a middle ground.  The Court agreed with South Carolina that an indigent defendant such as Turner does not have an automatic right to an attorney, even when the proceedings in which he is unrepresented could result in jail time.  In particular, the Court explained, the Constitution does not require a lawyer when the other side is not represented by counsel and there are enough other safeguards to ensure that the decision to send someone to jail is a fair one.  Here, the Court held, these safeguards did not exist:  the family court did not tell Mr. Turner what would happen if he did not pay, ask him for financial information that would allow the family court to determine whether he could pay, or appoint a social worker to evaluate the situation; therefore, it “vacated” (tossed out) the lower court’s decision and sent the case back to the South Carolina courts.

Finally, in a lower-profile but quite interesting case involving First Amendment rights, Borough of Duryea v. Guarnieri, the Court considered the scope of the First Amendment’s Petition Clause, which protects the right to “petition the Government for a redress of grievances.”  After Charles Guarnieri, a government worker, was fired from his position as Chief of Police of a Pennsylvania town, he filed a complaint with his union. He later got his job back but was given a list of new rules that restricted his ability to work and get overtime. Guarnieri sued, claiming that the new rules were issued in retaliation for his original union complaint and that the retaliation violated his First Amendment rights.  By a vote of eight to one, the Court disagreed.  It held that the government is not liable for violating the Petition Clause unless a complaint involves a matter important to the general public; the fact that the complaint is important to one person and his job (and, believe it or not, to his little dog, which Guarnieri’s lawyer asked the jury to consider in deciding the former police chief’s case).

That’s it for today.  The Court still has ten merits cases to decide by the end of the Term, and we are expecting opinions both tomorrow and Monday.  It should be exciting, and we will be back to explain them in Plain English.

Recommended Citation: Lisa Tucker, Monday’s decisions in Plain English, SCOTUSblog (Jun. 22, 2011, 3:20 PM),