At Wednesday’s Senate Judiciary Committee hearing for Supreme Court nominee Neil Gorsuch, Sen. Al Franken expressed his concern about several decisions that favored businesses over consumers. “What we’re worried about,” he explained, “is another 5–4 Roberts court making one decision after another … that hurts consumers.” Franken then tied conservatives’ interest in preserving these decisions to Senate Republicans’ unprecedented filibuster of Merrick Garland: “You said earlier, there’s no Democratic judges, there are no Republican judges. If that’s the case, what was Merrick Garland about? That’s what it was about. … [This] core group of cases in which the Roberts court continually has ruled in favor of corporations.”
Franken then alluded to the GOP’s gaslighting of the Democratic Party—“my colleagues on the other side say that we’re making something up over here”—before explaining what he and his Democratic colleagues are up to. “We’re trying to figure out whether we’re going to see a continuation of this pro-corporate bias,” the Minnesota senator said.
I’m pleased Franken raised these rulings and tethered them to the Garland blockade, because he’s absolutely right: Businesses have come to rely on the Supreme Court to swat away lawsuits and help them entrench their monopolies. In a series of closely divided rulings, the court’s conservatives have crushed class-action lawsuits while bolstering corporations’ ability to shunt legal challenges into mandatory arbitration, which disfavors consumers. These decisions are an embarrassment to the court; they are built upon such flimsy analysis that it is difficult not to conclude that the conservative majority simply wanted to help out the business world. And Franken was right to ask for Gorsuch’s attitude toward them, though of course the judge provided no substantive response.
Perhaps the most egregious anti-consumer decision by the Roberts court is AT&T Mobility v. Concepcion, a 5–4 ruling from 2011 that split along the usual ideological lines. In Concepcion, the court considered a California rule that prohibited contracts from forcing consumers into individual arbitration. These contracts barred consumers from mounting class-action lawsuits; the California Supreme Court found that they were unconscionable and therefore unenforceable. But in an opinion written by Justice Antonin Scalia, the U.S. Supreme Court reversed the California Supreme Court, finding that the Federal Arbitration Act of 1925 pre-empted California’s rule, rendering it invalid.
In reality, the FAA did no such thing. There is no reason to read the law to pre-empt the California rule—unless you really dislike the California rule and want to overturn it. That is what the court’s conservatives did, divining from the FAA’s penumbras and emanations that the law somehow prevented California from trying to protect consumers’ rights. Their decision had an immediately and extraordinarily detrimental impact on class-action litigation across the country.
The Concepcion ruling came down months before the court further gutted class actions in the infamous Wal-Mart Stores v. Dukes. Although the court ruled unanimously that the class action against Walmart could not proceed as constituted, the five conservative justices went further and decided that the suit could not proceed at all. In doing so, it created a novel roadblock to class actions, toughening the requirement that plaintiffs share a “common claim.” Two years later, in American Express v. Italian Colors Restaurant, the same five conservatives ruled that corporations can exercise monopoly power, then bar class actions and require that any anti-trust claims be sent to arbitration.
These ridiculous decisions—whose reasoning Republicans would mock if they did not approve of the outcome—crushed competition while denying workers and consumers their Seventh Amendment right to a jury trial. The rulings are not rooted in the law and barely pretend to be. They are policy preferences, coated in a thin patina of legalese. Franken was right to raise them, and Gorsuch should have wrestled with their incoherence. Instead, Franken’s time ran out and Gorsuch ducked the question. It appears we won’t know how he feels about these precedents until he has life tenure on the highest court in the country.