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Supreme Court: Taking Care of Business

How the high court caters to corporations and ignores commoners.

| Fri Jan. 25, 2008 1:00 AM PST

The line forms early on Friday mornings at Foundry United Methodist Church, a nearly 200-year-old institution located a few blocks from the White House. Famous in some circles as Bill Clinton's church, among the city's down and out, Foundry is better known as one of the few places around that offers help securing a government-issued photo identification.

Two weeks ago, Deborah Killebrew, 58, was one of those queued up outside the church to pick up a copy of her birth certificate, which Foundry volunteers had helped her obtain. Six years ago, Killebrew was hit by a drunk driver. Her fiance was killed in the crash and she was left with cervical spine injuries that eventually put her in a wheelchair. After a string of bad luck, she wound up living in a D.C. homeless shelter. Somewhere along the way, she lost her expired Virginia driver's license. Killebrew was unable to get a new one because she didn't have an official copy of her birth certificate from the state of Indiana, where she was born. But to get her birth certificate, Killebrew had to send the state a copy of her driver's license or a stack of other documents—like a car registration or mortgage document—she also didn't have. Eventually, she just gave up, until recently when she was referred to Foundry.

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Without a photo ID, Killebrew may not be able to drive or apply for food stamps, but here in D.C., one thing she can do is vote, which she does regularly. If she still lived in Indiana, though, she'd be out of luck. Two days before she arrived at Foundry to claim her birth certificate, the U.S. Supreme Court heard oral arguments in a lawsuit over a strict new Indiana law requiring all voters to show a government-issued photo ID before casting a ballot. The plaintiffs argued that the law was an unconstitutional burden on voters, particularly minority, poor, and elderly voters, who are the least likely to have the requisite ID. The law does allow people without an ID to cast a provisional ballot, but it won't get counted until the voter turns up at a county clerks' office to present identification.

If the justices rule against the plaintiffs, they will clear the way for other states to implement similar laws restricting voting rights for the less fortunate. Judging from the oral arguments in Crawford v. Marion County Elections Board, that's just what the justices are poised to do. While John Roberts worked at a steel mill during college, and Clarence Thomas came up dirt-poor in Pin Point, Georgia, the Supreme Court of late hasn't shown much interest in people like Killebrew who reside at the bottom of the economic food chain. The court's docket is increasingly dominated by business litigation—patent challenges, anti-trust suits, and attempts by big businesses to insulate themselves from all sorts of legal liability and litigation brought by their employees, investors, or aggrieved customers. The U.S. Chamber of Commerce recently bragged that it had its best year yet before the high court in 2007, racking up a string of impressive victories for big business that even surpassed the chamber's record-breaking year in 2006.

Topped off by last week's decision in Stoneridge Investment Partners v. Scientific Atlanta, which sharply restricted the ability of shareholders to sue entities that abet corporate fraud, recent winners before the Supreme Court have included Enron and the banks that facilitated its scam; payday lenders; investment banks that engage in price fixing; and tobacco companies, among others. Losers have been small investors, poor, black school children, working-class women paid less than men—and one kid who was paralyzed after a police officer rammed his car because he was speeding.

Not only are "the people" losing at a rapid clip when they come before the court, but it has gotten much, much harder for the average person to even get into court in the first place. Over the past two decades, Supreme Court decisions have quietly prevented a wide swath of the American population from even reaching the courthouse, much less prevailing there when they've challenged better-funded and more powerful interests. Lee Epstein, a professor at Northwestern law school, says that the court is "shutting down access to plaintiffs in all sorts of ways. The court seems to be saying 'stay out.'"

In the last term, the court ruled, for instance, that taxpayers had no right to challenge the federal government's use of tax dollars to pay for religious-based social services. The case overturned years of precedent giving people a say in how their money is spent if it seems to mix too much church with state business. In a complicated anti-trust case, the court basically rewrote the rules for filing a civil lawsuit, making it harder for plaintiffs to even get into a courtroom under the guise of protecting business from allegedly frivolous lawsuits.

Many civil rights lawsuits are brought by private individuals rather than the government through agencies like the Equal Employment Opportunity Commission, making them the primary mode of enforcing anti-discrimination laws passed by Congress. Yet the Supreme Court has moved to sharply limit such lawsuits through decisions that, for instance, restrict the awarding of attorneys fees to plaintiffs so that lawyers can no longer afford to bring such cases.

Epstein says that while it's true many of these decisions break down along ideological lines, some of rulings also may stem from the justices' personal backgrounds. Never has the Supreme Court been more homogenous, she says, noting that race and gender aside, the range of professional experience of the current court is extremely limited. All of the current justices came straight from the federal appeals courts, she points out, and most spent the bulk of their careers in government service or academia. Today's sitting justices are even geographically homogenous, having lived most of their adult lives in Washington or other nearby East Coast metro centers. Before they were appointed, Epstein says, "Most of these people could have taken the Metro or Amtrak to get to work."

At least with Sandra Day O'Connor on the court, Epstein says, there was not just a female voice, but someone from the West who had a different background from the other justices. O'Connor had been an Arizona state legislator and served as an elected trial court judge in Maricopa County. Epstein suggests that some of the court's rulings in recent years may have as much to do with the justices' service on appellate courts as ideology. None of them has much experience as private-practice litigators or trial judges, where they would be forced to look the plaintiffs in the eye and hear their stories. Epstein believes that the current crop of justices is inclined to think that "the judges below them get it right."

The insular experience of the Supreme Court justices seems to be spilling over into their decision making in a way that goes beyond partisan politics. Indeed, some of the more arcane business cases, which will nonetheless have a profound impact on such things as consumer protection, were decided by majorities that included Clinton appointees. All of the justices seem reluctant to do anything that might mess with business too much, even when those businesses could use some messing with.

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