FOCUS ON KAGAN

The list of recent decisions that members of the Senate Judiciary Committee are expected to discuss include:

Ledbetter v. Goodyear (2007), in which the Court ruled that a woman who had been the victim of decades of pay discrimination but only learned of it at the end of her career was not entitled to seek restitution because she did not file suit within 180 days of when the discrimination began.

Exxon Shipping Co. v. Baker (2008),in which the Court created a totally new rule in the wake of the Exxon Valdez oil spill that severely restricted Exxon’s liability for one of the worst environmental disasters in history. The ruling left tens of thousands of people affected by the oil spill with only a tenth of the compensatory and punitive damages that the jury awarded them. In dissent, Justice Stevens chastised the majority for “embarking on a new lawmaking venture” that was more properly the work of Congress.

Gross v. FBL Financial Services (2009), in which the Court made it much more difficult for plaintiffs to prevail in age discrimination employment cases by requiring them to prove that, “but for” their age, they would not have been discriminated against on the job. The ruling eviscerated the Age Discrimination in Employment Act (a central title of the Civil Rights Act of 1964).

Rent-a-Center v. Jackson (2010), in which the Court created a new rule that narrows the ability of individuals to have a federal court – rather than an arbitrator – determine the fairness of an arbitration agreement. The case arose out of an employment discrimination claim filed by a Rent-a-Center employee whose employment contract required disputes to be settled through the company’s arbitration process. According to the Constitutional Accountability Center, the Court’s ruling “effectively relegates American Workers to arbitration proceedings that can be structurally biased to favor large corporations.”

Citizens United v. FEC (2010), in which the Court ruled that corporations have the same free speech rights as human beings, overturning long-standing precedent and inviting corporations to make contributions from their corporate treasuries to the political candidates of their choosing.

On Thursday, two victims of these corporate-friendly decisions will testify about the Supreme Court’s impact on ordinary Americans. Lilly Ledbetter, plaintiff in Ledbetter v. Goodyear, and Jack Gross, plaintiff in Gross v. FBL Financial Services, will testify on behalf of Elena Kagan, and will encourage her confirmation as a step towards straightening out the corporate bent of the Roberts Court.