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Heat Waves & Interesting Times: Strieff, Female SCOTUS Justices, Lewis v. Epic, Congressional Sit-In….



“Our lives begin to end the day we become silent about things that matter”-Martin Luther King.  Speaking on things that matter, do Supreme Court women justices share different concerns than do the majority male justices?

I. Strieff & Evisceration of the Exclusionary Rule

This quotation affixed on a traffic light control box decorated as part of Pasadena’s urban art strategy faces me as I cross the street from my office to Urth Café on one of those dangerously hot days in late June 2016, about the time of the Democrats’ Congressional gun control sit-in.  It seems many things are dangerously hot these days, whether one thinks of yesterday’s Supreme Court (SCOTUS) decision in Utah v. Strieff retreating from the fundamental “fruits of the poisonous tree” 4th Amendment exclusionary rule, or of the impending July political conventions in Cleveland and Philadelphia, or the many white hot points of dissension underlying the ongoing campaigns.

As soon as I learned of Sotomayor’s dissent in Utah v. Strieff, and that there were a total of three dissenters, instinctively, I knew the other two dissenters were the other two women, Ginsburg and Kagan.  On numerous occasions in recent times of, in my view, unfortunate SCOTUS decisions, I have at least been able to console myself with the true fact that the women justices of the Court were in dissent, such that, were they/we (I am a feminist) ever to achieve parity, “things” might actually improve.

In Strieff, of course, the issue was whether, in the instance in which a police officer who stops a citizen without any cause (other than to run a warrant check) who then finds a warrant and consequently conducts an arrest and search and finds drugs, the drugs are admissible in evidence in criminal proceedings or excludable as “fruits of the poisonous tree.”  As Sotomayor explained simply in her dissent, this “exclusionary rule”  serves to “remove an incentive for officers to search us without proper justification.”  As Kagan also wrote in her separate dissent to Strieff, case precedent insists on suppression “when it will lead to ‘appreciable deterrence’ of police misconduct.”

In Strieff the particular point of technical inquiry had to do with application of “the attenuation doctrine” which looks, “in tort terms,” to “whether the constitutional violation was the proximate cause of the discovery of the evidence” or whether, instead, there were intervening, meaning unforeseeable, circumstances.  As Kagan sensibly explained, “predictable effects…rather than breaking the causal chain…are its very links.”

Both Sotomayor and Kagan look to the circumstances of actual reality in applying the attenuation doctrine, including available, “records”, statistical evidence of the significant percentages of the civilian population with arrest warrants and how those percentages also vary among different communities.  The conclusion reasonably drawn by the dissenters (Ginsburg joining in both Sotomayor’s dissent and also Kagan’s dissent) is that, due to the majority’s decision, authored by the first 3 of the 4 parts of Justice Thomas (and joined in by all the other men but none of the women on the Court), is that “the officer’s incentive to violate the Constitution…increases.”

Notably in the 4th and final part of her dissent, “writing only for myself and drawing on any professional experiences,” Justice Sotomayor reviews in detail the indignity of a without-cause “stop”,  from standing helpless facing a wall with hands raised, through a “groping” “frisk,” being cuffed, then jailed, swabbed, searched, de-loused, and joining the “civil death” of 65 million Americans in terms of “discrimination by employers, landlords and whoever else conducts a background check.”

Sotomayor then steps up to state for the record that “people of color are disproportionate victims of this type of scrutiny” such that “for generations, black and brown parents have given their children ‘the talk’-instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger- all out of fear of how an officer with a gun will react to them.”  She cites to James Baldwin, Ta-Nehisi Coates, W.E.B. Du Bois and Michelle Alexander’s The New Jim Crow, and in her “blistering” conclusion, to my Radcliffe and Yale L.S. co-alum Lani Guinier’s 2002 book The Miner’s Canary (co-authored with Gerald Torres):

“We must not pretend that the countless people who are routinely targeted by police are ‘isolated.’  They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere [citation to The Miner’s Canary, 274-283].  They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.”

This, no doubt, is the portion of her opinion which caused the Wall Street Journal (WSJ) in yesterday’s June 22 editorial to characterize Sotomayor as an “outlier” who “went off the deep end with an extended polemic about police misconduct, events in Ferguson, Mo, and race in America,” thereby betraying a lack of “judicial wisdom” (the WSJ omits to mention that Justice Ginsburg joined in the first 3 parts of Sotomayor’s dissent, though it does acknowledge that Justice Kagan “dissented with ‘lawyerly’ disagreements over the scope of the attenuation doctrine”).  Apparently the WSJ and Justice Sotomayor disagree as to whether the majority decision’s incentivizing of police misconduct carries racial implications in today’s world, dramatically demonstrating why diversity on the bench is so important.  WSJ effectively concludes that all the women on the bench “ignore the law” and that Sotomayor is just flat wrong in perceiving that the case had anything to do with race.

In fact, for the most part, the female justices of SCOTUS are to be commended for “speaking truth to power” as to the real-world implications of evolving federal jurisprudence.  Consider the words of the “Great Dissenter, the “notorious Ruth Bader Ginsburg,” dissenting in the presidential race-deciding Bush v. Gore (2000), enabler of money-in-politics Citizens United (2010), voting rights-disabling Shelby County v. Holder (2013), and reproductive care-depriving Burwell v. Hobby Lobby (2014).

In both Citizens United and Hobby Lobby figured the majority’s expansion of the notion of “corporate personhood.  Breyer’s dissent in Citizens United  (joined in by Ginsburg and Sotomayor) spoke of the majority’s “conceit that corporations must be treated identically to natural persons in the political sphere” and elevation of “’corporations to a level of deference…not seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests’ [citation omitted],” concluding that the since widely-reviled decision is “a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding…”    In Hobby Lobby, the majority decision authored by Alito and joined in by Roberts, Scalia, Kennedy and Thomas, with Ginsburg’s dissent joined in by Sotomayor, Kagan and Breyer, , construed a for-profit corporation as a “person” whose “exercise of religion shall not be substantially burdened by the government to enable Hobby Lobby to “opt out” of the Affordable Care Act’s contraceptive coverage requirement, thereby denying contraceptive coverage to  “legions of women who do not hold their employers’ beliefs.”

 II.  Italian Colors & Evisceration of the “Effective Vindication” Rule

In a field closer to my primary area of practice in employment and employment arbitration law, much as the Strieff dissents decry the misapplication of exceptions to the exclusionary rule as incentives to unlawful behavior, so  Kagan’s dissent in SCOTUS’s decision in American Express Co. v. Italian Colors Restaurant (2013) (in which Ginsburg and Breyer joined) decries the decision of the majority (authored by Scalia) for its evisceration of the “effective vindication” rule, which evisceration operates as perverse incentive to companies to “draft their [arbitration] agreements to extract backdoor waivers of statutory rights, making arbitration unavailable or pointless.”  Kagan excoriates the majority’s decision as “a betrayal of our precedents”, pursuant to which the effective vindication rule bars application of an arbitration clause when “it operates to confer immunity from potentially meritorious federal claims.”

The particular context of Italian Colors concerned a restaurateur’s efforts to challenge a “tying arrangement” allegedly in violation of antitrust law, where the “variety of procedural bars” contained within the arbitration clause at issue “would make pursuit of the antitrust claim a fool’s errand.”  According to Kagan’s dissent, the restaurateur had established that “if the arbitration clause is [deemed] enforceable, Amex has insulated itself from antitrust liability- even if it has in fact violated the law.”

While the majority in Italian Colors maintained that the FAA required its result, Kagan did not mince words in disagreeing:  “Do not be fooled,” she cautioned the American citizenry:  “Only the Court so requires; the FAA was never meant to produce this outcome.”

“In the hands of today’s majority, arbitration threatens to become …. a mechanism easily made to block the vindication of meritorious federal claims and insulate wrongdoers from liability.”

In the 2015 case of DirecTV, Inc. v. Imburgia Ginsburg wrote the dissent in which Sotomayor joined, noting “Today’s decision steps beyond Concepcion and Italian Colors. There, as here, the Court misreads the FAA to deprive consumers of effective relief against powerful economic entities that write no-class action arbitration clauses into their form contracts….Today, the Court holds that consumers lack even the benefit of the doubt when anomalous terms in such contracts reasonably could be construed to protect their rights.”

Of course in Scalia’s seminal Concepcion decision (AT&T Mobility LLC v. Concepcion) (2011) (Ginsburg, Sotomayor and Kagan joining in Breyer’s dissent thereto),  in a  consumer (rather than employment context), SCOTUS ruled that the Federal Arbitration Act  (“FAA”) preempted  California law prohibiting class action waivers in any contract; the dissent noted “no meaningful support” for the majority’s decision in SCOTUS precedent.  As Stanford law professor and former National Labor Relations Board (“NLRB”) Chair William Gould, construing Concepcion expansively to encompass the employment context as well, has commented,   “Scalia reasoned that this arbitration system…would be deprived of its informality if the little guy had leverage.  The Scalia opinion bore little relationship to the real world employment relationship.”

Kagan paid homage to the first female justice, Sandra Day O’Connor who, back in 1995, wrote in Allied-Bruce Terminix Cos. v. Dobson, “when the Court” (in Kagan’s words) was “just beginning to transform the FAA into what it has become,”

“[T]he Court has abandoned all pretense of ascertaining congressional intent with respect to the Federal Arbitration Act, building instead, case by case, an edifice of its own creation.”

Kagan therein cites to eminent law professors/scholars Margaret Moses (Loyola University Chicago School of Law) and Judith Resnik (Yale L.S.) who have written, respectively, about the origins of the FAA in 1925 and the modern proliferation of mandatory arbitration provisions in consumer adhesion contracts, and concludes that it is the Court’s own decisions that “have predictably resulted in the deprivation of consumers’ rights to seek redress for losses and, turning the coin, they have insulated powerful economic interests from liability for violations of consumer protection laws.”

III. Lewis & The Viability of NLRA Section 7 Collective Action?

I wonder who will author the majority and dissenting decisions when SCOTUS, no doubt shortly, squarely reviews the societally pivotal issue posed by the Seventh Circuit Court of Appeals May 26, 2016 decision in Lewis v. Epic Systems Corp., presaged by Professor Gould in his afore referenced comments. That decision, authored by Chief Judge Diane Wood, contrarily to decisions of the Fifth, Eighth and Ninth Circuits, in a straight-forward legal analysis determined that Section 7 of the National Labor Relations Act (NLRA) provides a federal, substantive right to associate (to better workplace conditions) and that, per clear SCOTUS precedent, contracts “stipulating …the renunciation by the employees of rights guaranteed by the NLRA” are unlawful and unenforceable.  Further, the “savings clause” of the FAA precludes enforcement of illegal terms, such that there is no conflict between the NLRA and the FAA and a mandatory employment arbitration agreement which prohibits collective action by workers is unenforceable.

“Because it precludes employees from seeking any class, collective or representative remedies to wage-and-hour disputes, Epic’s arbitration provision violates Sections 7 and 8 of the NLRA. Nothing in the FAA saves the ban on collective action.”

Notably, the court deferred to the NLRB’s definition of “collective action” inasmuch as Section 7 is the core substantive right protected by the NLRA, and found the right to associate substantive (rather than merely procedural) inasmuch as it is guaranteed by the First Amendment to the U.S. Constitution.  The Lewis v. Epic court noted that none of the Circuit Courts previously thereto determining the issue “had engaged substantively with the relevant arguments” and that neither of SCOTUS’s decisions in Concepcion nor Italian Colors went “so far as to say that anything that conceivably makes arbitration less attractive automatically conflicts with the FAA.”

IV.  Much That Matters At Stake….

With wildfires burning throughout California, I hesitate to say that the answer is “blowing in the winds” of political change this November. Yet,

“By adversity are wrought the greatest works of admiration and all the fair examples of reknown out of distress and misery are grown.”- Samuel Daniel.