Legal Advocacy
Supreme Court Opens its’08-’09 term
The Supreme Court opens its 2008 Term on October 6 with a number of critical issues on its docket. With the last few sessions notable for the number of closely decided (5-4 votes) and narrowly written decisions, as well as a slant that most commentators find more pro-business and less open to expanding individual rights, the arguments in the upcoming cases will be watched closely.
Again this year, AARP Foundation Litigation has produced its media guide to the upcoming Term: The Supreme Court 2008: What’s At Stake for Americans 50+. In the Preview, AARP Foundation Litigation attorneys discuss cases of importance to older persons and future trends in the Court’s docket of cases.
Last term, the Court decided five cases on age discrimination – an unusually large number for any single area of the law. In this upcoming term, the Court will take up the question of calculation of retirement service credit for a worker on maternity leave (AT&T Corp. v. Hulteen), an issue of importance to women because women generally receive smaller pension benefits and live longer than men. The Court will also decide to what extent employees are protected from being fired for cooperating with an internal corporate investigation of workplace discrimination (Crawford v. Metropolitan Government of Nashville). Of particular importance to many families will be Kennedy v. Plan Administrator for DuPont Savings and Investment, which addresses distribution of retirement benefits for couples who have divorced. Because pension benefits are often one of the largest marital assets, this apparently narrow issue has significant repercussions across the American landscape.
The Court is also slated to take up cases in other areas of the law that affect older Americans.
14 Penn Plaza LLC v. Pyett will decide whether a mandatory arbitration clause contained in a collectively bargained agreement is enforceable if it waives employees’ rights to a judicial forum for their federal statutory claims, in this case age discrimination – another example of the pervasive reach of arbitration clauses. Originally designed for business-to-business transactions, arbitration clauses (which carry fewer procedural protections and access to evidence, can be conducted behind closed doors, and are often much more expensive than courtroom proceedings) are now an increasing part of daily life and can be found in credit card agreements, retail sales agreements, employment contracts, and nursing home contracts.
FDA approval of prescription drug labels versus state tort law is an issue of tremendous interest and is the question in Wyeth v. Levine, which deals with a warning label alleged to be dangerously misleading. The pharmaceutical manufacturer is arguing that even if the label was misleading, the company is shielded from state tort actions because the federal Food and Drug Administration approved the label and, the company argues, its approval preempts state law.
Federal preemption in a different area of law is the matter before the Court on its first day of oral arguments in Good v. Altria Group, which questions consumer limitations in challenging false and deceptive practices. At issue is the labeling of “light” cigarettes, which plaintiffs argue violates Maine’s Unfair Trade Practices Act, a law from which the cigarette manufacturer argues it is shielded by the Federal Cigarette Labeling and Advertising Act.
These are some of the cases that the Court has already decided to review.
Other cases are in the pipeline awaiting a determination of whether the Court will exercise its discretion to hear them. To date -- and it is early yet -- these include disputes over Texas’ Medicaid reimbursement rates and the extent of accountability of housing providers who fail to meet accessibility for the disabled as required by the federal Fair Housing Act.
Cases that could still reach the Court include disputes over application of prior Court decisions, and cases where federal appeals courts have separately issued rulings that conflict with each other. Some of the issues that could trickle up to the Court from either of these avenues including disputes over state health care privacy laws, state regulation of pharmacy benefit managers, and other types of state health care reform, mandatory arbitration, class action proceedings, and the implementation of the multitude of employment-related age discrimination rulings issued by the Court over the last few years. Two major constitutional issues left unresolved by recent Court cases concern the Americans with Disabilities Act (ADA) relationship with the U.S. Constitution’s Eleventh Amendment sovereign immunity protections for states, and the constitutionality of state law implementing increasingly restrictive voter ID laws (which disproportionately impact Americans who are older, low-income, geographically isolated, or residents of nursing homes).
It is no exaggeration to say that as baby boomers age; Supreme Court decisions will influence a larger percentage of the American population and will increase in significance. AARP, through its active “friend of the court” participation in Supreme Court arguments has and will continue to ensure that the Court is made aware of the concerns of its 40 million members. Because AARP considers itself the voice of older people, participation in these cases is an integral part of AARP’s advocacy. It will continue letting the Court know its view in this term, as in past terms.
Contact person:Stu Cohen
scohen@aarp.org
(202) 434-2060