Repealing the 20th Century: While Everyone Focuses on Its Abortion Decisions, the Roberts Court Is Merrily Revoking a Century of Legislation Protecting Citizens, Consumers, Workers, and Minorities against Business
Lazarus, Simon, The American Prospect
WHEN MOST AMERICANS THINK ABOUT THE Supreme Court's effect on the life of their nation, they think about such cultural hot-buttons as abortion, or due process for terrorists, or free speech and pornography. They don't think about the Court's effect on the issues that most directly affect the majority of them on a daily basis--health and retirement security, workplace fairness and equal opportunity, consumer protection and product safety.
Since these pocketbook matters do not roil culture-war sensitivities or raise constitutional questions, the press, public, and politicians pay little or no heed when they come before the Court. Nor, with few exceptions, do liberal advocacy groups-even though landmark laws they fought to enact are at risk, and even though constituencies they purport to represent have much reason to care about how those laws will fare in the hands of the Roberts Court. Indeed, while right-wing groups still make political hay by railing at "liberal activist" judges, progressive groups often pay scant attention to the conservative-activist threat to judicially repeal the economic protections that Congress and state legislatures have enacted since the New Deal.
The current Supreme Court term, however, could yield some historic decisions that do just that. For the past two decades the Rehnquist Court narrowed the scope of economic-security safeguards, insulated federal and state officials from accountability for maladministration of those laws, and obstructed citizens' access to legislatively guaranteed benefits and protections. Earlier this year, in its notorious May 2007 Ledbetter v. Goodyear Tire & Rubber decision, a 5-4 majority on the Roberts Court gutted the 1964 Civil Rights Act guarantee of equal pay opportunity. Now, cases to be decided during the Court's new term will provide clues as to whether the Roberts Court intends to launch an even more aggressive campaign to dismantle 20th-century progressive reforms and abort similar 21st-century initiatives.
The weightiest such items on the Court's 2007-2008 agenda are two cases affecting legal guarantees of health and retirement security. These cases, one already docketed and one the subject of an as-yet unanswered petition for review, will test whether the Roberts Court will expand Rehnquist Court doctrines that have stripped workers and retirees of remedies for abuse by employers, health maintenance organizations (HMOs), and entities that administer their health and retirement plans. These doctrines have provoked outrage from legions of scholars and lower-court federal judges, who have complained that they mandate unjust decisions and grotesquely misconstrue the landmark federal Employee Retirement and Income Security Act of 1974 (ERISA). This is not an abstract or isolated problem; over 130 million Americans currently count on employer-sponsored plans for retirement and health-care protection.
ERISA was enacted after more than a decade of congressional investigations into widespread abuses of employee-benefit plans by company and union administrators. ERISA mandated that plan administrators would be required as a matter of federal law to act "solely in the interest of the participants and beneficiaries for the exclusive purpose of providing benefits" to them, and to do so with "care, skill, prudence, and diligence." But over the past 30 years, principally in 1993 and 2002 decisions authored by Justice Antonin Scalia, the Supreme Court has turned these common-sense goals upside-down. According to the Court's mystifying doctrine, victims of unlawful abuse cannot secure "make whole" monetary relief from ERISA plan administrators who have violated their fiduciary duties.
As described by Edward Becker, the late 3rd Circuit U.S. Court of Appeals chief judge (and a Reagan appointee), the Court's decisions have converted ERISA "into a shield that insulates HMOs from liability for even the most egregious acts of dereliction committed against plan beneficiaries, a state of affairs directly contrary to the intent of Congress. …