The Least Visible Branch of Government

The Supreme Court rules on issues that affect your life and your pocketbook

by John C. Henry, From the AARP Bulletin Print Edition, November 1, 2010 | Comments: 0

The late Chief Justice William H. Rehnquist, strolling outside the Supreme Court several years ago, was flagged down by tourists seeking directions to Georgetown — they had no idea who Rehnquist was.

His successor, John G. Roberts Jr., is even less well known. A recent survey by the Pew Research Center found that twice as many people knew the host of this year's World Cup (South Africa) as knew Roberts' name.

The chief justice, at the apex of the judiciary system, is one of the most powerful people in the country. Yet despite this pivotal role in society, the Supreme Court and the lower courts are the least-known branch of the federal government. The Supreme Court, for example, is regarded by most people as middle-of-the-road and becoming more liberal, the Pew survey found, a head-scratching misperception of a high court dominated by Republican appointees.

In this cloak of near anonymity, the Supreme Court will decide cases in the coming months with real impact on worker rights, investor protections, health care and other issues that affect the personal finances and lives of older Americans.

"The Supreme Court is spending more of its time in recent years on pocketbook issues that affect us all, and to a greater and greater extent the Roberts court is tilting away from workers and retirees," said Simon Lazarus, public policy counsel for the National Senior Citizens Law Center.

A new dynamic this session comes with new justice Elena Kagan, marking the first time three women have served on the court. But she is not likely to change its ideological balance. Five of the justices were appointed by Republican presidents, four by Democrats, almost the same ratio as for all federal judges, according to the Alliance for Justice, a left-leaning public interest group.

An analysis published by the Brookings Institution of thousands of federal district, circuit and Supreme Court rulings found "striking evidence of a relationship between the political party of the appointing president and judicial voting patterns." The study found significant differences between Republican and Democratic federal judges involving disability discrimination, affirmative action, sex discrimination, labor law, environmental protection and campaign finance.

At the Supreme Court, this difference is most apparent in cases decided along ideological lines, often with Justice Anthony Kennedy casting the pivotal vote. An analysis by Tom Goldstein, a lawyer who manages Scotusblog.com, found that half of last year's rulings were unanimous, and another 10 percent were decided along conservative-liberal lines. Since the ascendancy of conservatives in the 1980s, the 5-4 ideological splits have included some of the biggest controversies — including the 2000 ruling that assured George W. Bush's presidential election and the decision early this year that gutted campaign finance law and unleashed a torrent of new campaign spending, mostly against Democrats.

In the past three years, the rights of older workers were dramatically curtailed by two 5-4 pro-business rulings. In the first, Goodyear Tire supervisor Lilly Ledbetter lost her claim for past compensation when the court ruled that she had waited too long to file a sex discrimination lawsuit. Last year, the court ruled against an Iowa financial analyst, Jack Gross, who claimed he had been demoted in part because of his age.

Cases on point

The justices sift through some 9,000 cases a year and pick 80 to 90 for argument. For its current term, the court has chosen more than 50 so far. Among them:

Whether a Kentucky company violated federal civil rights law by firing Eric Thompson, whose fiancée had complained of sex discrimination. The justices will decide if Thompson can sue North American Stainless for retaliation. Thompson and Miriam Regalado began dating while working at a North American Stainless plant. The company fired Thompson three weeks after it learned Regalado had filed an EEOC complaint claiming she had been unfairly demoted twice because she was a woman.

Supreme Court Photo: (1) Sonia Sotomayor (2) Stephen Breyer
(3) Samuel Alito (4) Elena Kagan (5) Clarence Thomas (6) Antonin Scalia (7) Chief Justice John Roberts (8) Anthony Kennedy (9) Ruth Bader Ginsburg

The company initially faulted his job performance and later said he was dismissed for insubordination. Thompson sued, but a federal judge ruled that he was not protected from retaliation.

"It was wrong, what they did to me," Regalado said. "What they did to Eric was even worse. To get at me, they fired him."

The ruling on this case could have broad impact on complaints about sex, race or age discrimination on the job.

Whether drugmaker Matrixx illegally withheld information from investors by failing to disclose reports of adverse reactions to its drugs. Federal law says a company can be held liable for not reporting information that might affect decisions to buy or sell its stock.

A group of shareholders sued Matrixx and its top officials, accusing them of withholding information about Zicam, a cold medication, and reports that it caused loss of smell. The company's stock shares dropped 12 percent in one day when the side effect became public. Stocks are often prominent in retirement portfolios, and this case could affect investors' ability to sue to protect their investments.

Kagan's appointment could weaken the liberal wing of the court because she has recused herself from half the court's cases this term. "There could be an unfavorable impact," Lazarus said. "It's the price we have to pay when the court gets a new justice who is well qualified and we hope will be around a long time."

Cases on the court's docket address age and disability discrimination, veterans benefits, consumer protection and employee benefits. The court may yet decide to hear a class-action sex discrimination case brought against Wal-Mart as well as the multistate challenge to the new federal health care law.

As for their customary low profile, the justices took a small step this fall by deciding to regularly release audio recordings of oral arguments. But TV cameras still are not allowed in the court, and last spring the front entrance to the Supreme Court was closed to the public for security reasons. Not surprisingly, that move was accompanied by a dissent — from Justices Ruth Bader Ginsburg and Stephen Breyer — lamenting the symbolism of doors now closed.

For more information, check out the AARP lawyers' analysis of cases before the Supreme Court.

John C. Henry has been a reporter and editor in Washington since 1998.