07/06/2011 10:52 am ET Updated Sep 05, 2011

Don't Go Away Mad, Just Go Away: The Supreme Court Closes Up Shop

The U.S. Supreme Court ended its term this week and now starts a three-month vacation. If the Court's members follow past practices, Justice Thomas will head out in his motor home in search of NASCAR race venues. Justice Scalia will spend the summer racking up speaking fees at Federalist Society conferences or in a duck blind with Dick Cheney.

Judging from some of the cases decided by the Court during its past eight-month term, the conservative bloc of five Republican appointees appear to want more time for vacationing. Those five justices seem intent on America's courts taking it down a notch and kicking back more.

Closing down for the summer is not the Roberts Court's only disappearing act. During this past term, a disturbing trend emerged of withdrawing the courts from their historic and institutional role in providing justice for ordinary Americans. The Gang of Five conservative justices on the High Court has preemptively closed the courts' doors to the potential 300 million citizens who might sometime need "their day in court."

Two decisions released this spring provide evidence that the conservatives on the court have been eager to turn deaf judicial ears toward cases against corporations brought by employees and disgruntled consumers who want to use efficient legal strategies in seeking redress for their grievances. Dukes v. Wal-Mart

Wal-Mart was the blockbuster case at the end of the term. The reaction of the atomized Jane Q. Citizens (e.g. women workers) who were thrown out of court should be despair; the reaction of employers and corporate lawyers will be the smug satisfaction of feeling legally impregnable.

Statistical evidence gathered from Wal-Mart's employment records showed female employees at Wal-Mart, like the class action's named plaintiff Betty Dukes, were promoted more slowly and paid less than male employees hired for the same positions. A law passed by Congress decades ago, commonly called Title VII, gave them the right to bring such a lawsuit in the federal courts. The plaintiffs sought to bundle all the cases of the victimized female employees into one case and seek just compensation for the gender discrimination prevalent in the Wal-Mart business practices and workplace.

But, the Supreme Court closed the courthouse doors to all those hundreds of thousands of complaints of individual employees when they are combined together into a class action. Justice Scalia noted that the suit would encompass:

"literally millions" of employment decisions... Without some glue holding the alleged reasons for all those decisions together, it will be impossible... to produce a common answer to the crucial question why was I disfavored."

Of course the female employees of Wal-Mart have no problem in identifying the "glue" and the easily apparent "common answer" that eluded Justice Scalia and the four other Republican appointee men in the majority: they are women, not men, working at Wal-Mart.

Despite Justice Scalia's open mouth gasp at the size of the class action suit, that isn't the fault of the plaintiffs' lawyers. It is as much the result of an antitrust and deregulated business environment that allows one corporation to grow to be the largest private employer and retail business in the world selling half a trillion dollars of products. In spite of its gargantuan size and celebrated corporate efficiency, Justice Scalia describes Wal-Mart as little more than a corporate umbrella that publicly proclaims the usual "nondiscrimination" policy; but beyond that, is loathe to accept any responsibility whatsoever for how its thousands of managers of thousands of stores treat employees working under that umbrella.

Sure, the Court ruled, each employee could still look for a lawyer to take on a contingency case against the world's largest retailer. The possible verdict might be an award of a few hundred dollars in back pay that had been unlawfully denied.

Good luck with that. Realistically, what are the chances of thousands of employees taking that action and the lower chance that even a handful will find lawyers willing to take their cases?

The immediate impact of the decision for the "literally millions" of victims (not "decisions" as Justice Scalia's rhetoric distorts) of Wal-Mart's gender discrimination is that most will not have their "day(s) in court."

A longer term by-product of that impact for judges and Justices: reduced court calendars and more potential vacation time.

ATT Mobility v. Concepcion

Groucho: "...that's in every contract. That's what they call a sanity clause."

Chico: "You can't fool me, there ain't no sanity clause."

-- The Marx Brothers, Night at the Opera.

ATT Mobility concerned what should happen when a large number of customers are victims of sharp business practices that hurt customers but benefit a corporation's bottom line? ATT said the company would provide a "free" phone to certain customers; but it wasn't "free" from sales tax, a 30 dollar charge the consumer would have to pay. The Concepcions, the lead plaintiffs for the class of ATT cellphone users, claimed the telcom carrier hid that "It ain't so free" provision deep down in pages of small print.

In a small claims court action the disputed provision might have garnered the Concepcions a refund. When lawyers attempted to bundle a large number of such small value cases together into a class action -- seeking a refund of the extra fee for each customer in the class -- there was a gotcha clause buried even further down in the contract's small print.

ATT included a provision in the purchase contract saying a disputed claim could not be taken to court. It could only be resolved through an arbitration procedure set up by ATT. Moreover, similar arbitration claims could not be bundled together for the whole class; each customer would have to individually go through the arbitration procedure as required by the contract. And of course, ATT knows full well that such an arbitration procedure over a $30 claim is not something for which any customer would seek out a lawyer; and, even if they did, no lawyer would take one such small case.

The California Supreme Court ruled that imposition of exclusive arbitration remedies in contracts like that used by ATT customers violated California laws. But, the U.S. Supreme Court ruled that a Federal law favoring the use of arbitration to avoid litigation in the courts preempted California's law.

The result for the parties in ATT Mobility was similar to that in Wal-Mart with regard to whose interests were trammeled and whose were protected: hundreds of thousands of customers with a contract dispute against a large national corporation couldn't bring their claim to court. Why? The consumers had not paid sufficient attention to the contract's small print. Had all the Marx brothers bought cell phones from ATT, each one could pursue his own arbitration claim; but they couldn't sue in court together. Chico would have as much trouble with that as he had understanding the "sanity clause."

In addition to keeping complaints about the business practices of a large corporation out of court, the result is also good for judges and Justices as they pack beach chairs and suntan lotion this week? More time for vacations will be cleared by eliminating dockets cluttered by cases of consumers fighting for just compensation from a large American corporation.

To what extent Americans should be permitted to take grievances against businesses to court is a complicated proposition without a simple answer. It is important to note that in neither of the cases did the Justices say that the plaintiffs had no case or were not entitled to compensation.

But it can be of little solace to Ms. Dukes and the female employees of Wal-Mart, or to the Concepcions and other customers of ATT, to be told "You may well have a good case and be entitled to compensation. But you will have to go to a lot of trouble by yourself if you want to take on a large corporation. And one more thing: don't let the door hit you as it closes."

There is a unifying jurisprudential theme from both cases. Five conservative members of the Supreme Court voted consistently to close the courthouse door where (what Leona Helmsley famously dubbed) "little people who pay taxes" seek out justice for injuries and disputes with businesses and corporations. When the justices return in October the five conservative bloc justices will feel refreshed and ready to find additional ways to cut back on the role of courts in providing "justice for all."

But as Stephen Colbert might say: "Nation, rest assured. There is no danger that the allure of the beach or the mountains will interfere with the Supreme Court reopening in time for election season." After all, this year or next there may be a Republican candidate running a bit behind in the vote count, say in a state such as Florida. The conservative bloc will be concerned that the doors of the Supreme Court remain wide open to provide justice for such a potential litigant in need of a helping jurisprudential hand.