Bad Supreme Court Decisions: Blame Ourselves #NN13

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We have met the enemy, and it is us.  That was the theme Thursday morning of a panel on the Supreme Court at Netroots Nation 2013.  

Rick Jacobs of Courage Campaign, Pam Karlan of Stanford Law,  and Tom Saenz of MALDEF, convened to discuss social justice and Supreme Court decisions with many anticipating several decisions that morning that never came: Voting Rights Act, DOMA and marriage equality, affirmative action (at the University of Texas).  Instead, the Court released a decision upholding the enforceability of arbitration clauses in consumer contracts.  

This is big, and the panel knew it.  And it hardly caused a ripple in the news.  

To see why, read below the jump.  If you've ever bought a cell phone, the decision affects you.  If you've ever signed a credit card agreement or purchased a computer, the decision affects you. Under yesterday's ruling, corporations can draft exceptionally restrictive contracts with consumers.  Those contracts contain mandatory arbitration clauses barring consumers from using the courts in the case of a dispute with that corporation. Such arbitration panels often have a corporate bias, and the financial barriers to such arbitration are prohibitive.  It is structurally is more efficient for corporations, and not economically viable for consumers at best, and simply catastrophic at worst.  

Class actions, the great leveler between consumers and corporations, are written out of the contract, and under yesterday's opinion, the corporations that enjoy the weight of the bargaining power, can draft these provisions and enforce them.  The only real way to get out of a mandatory arbitration clause is to get a finding by a court of procedural or substantive unconscionability, which is nearly impossible.  

The doors to the courthouse have been closed.

But what do iPhone contracts have to do with social justice?  Everything.  Yesterday's decision is the result of an insidious incrementalism that has been moving steadily forward since the Reagan years.  Corporations have been, for decades, pushing to reduce citizen access to the courts.  Rights are not suddenly stripped away one day in an explosion of injustice.  Rather, they are eroded slowly, cloaked in the guise of banality.  

And so, the process that takes away consumer rights is the same process that is used to claw back the reproductive rights of women or the voting rights of disenfranchised minorities in Texas – not in one fell swoop, but with one seemingly harmless victory at a time – until, suddenly, they are all gone.  

Similarly, just as the process to strip rights is the same whether it concerns reproductive health or access to the courts, the tools to protect or restore those rights is the same: narrative, familiarity, movement.  The panel drove this point home, first placing it in the context of arbitration clauses, and then translating it to the context of voting rights, marriage equality, and reproductive rights. Arbitration clauses were allowed to stand, ultimately, because there was no consumer rights movement.   Rights for the gay community have been won slowly and then with increasing speed because there is a movement.  

And also because judges are people, and like legislators, they are susceptible to movements, to activism, and to familiarity with those who will be affected by their rulings.  They do not live in a vacuum, and they are sensitive to public opinion, independence notwithstanding.

To illustrate this point, Karlan told a brief story about oral arguments in the case of Lawrence v. Texas, the 2003 Supreme Court case that struck down anti-sodomy laws in Texas.  Linda Greenhouse, now a professor at Yale, and for years, The New York Times' Supreme Court reporter, was asked what the most striking thing about the oral arguments was.  She didn't even flinch and pointed to all the former Supreme Court clerks who were a) homosexual, and b) who had returned to sit in on the oral argument. As everyone later learned, Lawrence was decided such that it fell on the right side of history.

On the flipside of this argument, according to the panel, is the fight to protect women's rights in reproductive health, even as conservative state legislatures seek to whittle them down.  Unlike marriage equality, which has been making nearly unprecedented leaps and bounds in terms of how rapid it has moved from anathema to must-pass legislation in state houses around the nation, women's health has suffered several notable setbacks. If you were in the Texas Capitol until three o'clock this morning, you saw this firsthand.  

The panelists explained it, invoking Donald Rumsfeld: Known knowns and unknown unknowns.  In short, gay couples are coming out and saying that they are gay couples.  People know them.  Legislators, judges, and others with power to influence power.  . They know them.  They are in their ranks. They call them “colleague,” “friend.”  

Reproductive rights and abortion are different, however.  Rather than falling under the very public equal protection clause of the Constitution, reproductive health falls under the right to privacy in the constitution, and it is kept private.  As a result, lawmakers passing this legislation can think of reproductive health in the abstract.  They do not look down the pew, or down the conference table at a friend or a colleague and think that this legislation affects the person sitting next to him.  Rather, they think “someone else somewhere may need an abortion, but I do not know that person.”  It is abstract, and bolstered by a sense of “otherness.”  There are no compelling, immediate stories; there are no faces directly tied to the issue at hand.  It is an known unknown, or worse, an unknown unknown.  The bad law has no human face to counter it; the bad law marches forward, the law passes, the courts uphold it.   Thursday night in Austin, Texas, was a huge step in breaking that cycle.

In comparing marriage equality and reproductive health, Rick Jacobs pointed out a very uncomfortable truth.  He told the story of Prop 8, the California law that was passed by the electorate the very day that Barack Obama was elected to his first term as President. Using that anecdote, he drew this lesson: people fight harder not for things that are threatened in the abstract, but for things that have already been taken away. In his telling, Prop 8 was actually the greatest thing for marriage equality and gay rights since Stonewall.  

Narrative works.  Advocacy works.  Familiarity works.  And if losing rights is the best thing to happen to securing them, then last night may just have been the most important inflection point in the fight for women's reproductive rights in Texas in recent memory.  


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