5 to 4 Conservative Lock on the Supreme Court

The painful reality facing the civil rights community is that the U.S. Supreme Court is locked in a 5-4 conservative majority on nearly every controversial legal issue that comes before the Court. The 2012-13 term further confirms that this majority is unshakable, with important consequences for the rights of workers, consumers, whistleblowers, and voters. For every ruling that expands civil rights, including the decision that struck down the Defense of Marriage Act in June 2013, there are many more that go in the opposite direction.

Shelby County v. Holder

At the end of the 2012-13 term, the Court struck down Section 4 of the Voting Rights Act (VRA) of 1965, one of the most forward-looking and successful acts of Congress in American history. The VRA as a whole made it illegal to discriminate against voters because of race or color. Section 4 held certain states to pre-clearance requirements if they wanted to alter their voting rules. As periodically re-authorized by Congress over the years, these were not just southern states. They also included New York and Michigan. In the covered states, no change in voting procedures could take effect until approved by federal authorities. This ensured that new voting procedures did not discriminate against racial minorities. In 2006, a bi-partisan Congress overwhelmingly re-authorized Section 4’s pre-clearance requirement and it was signed into law by President Bush. In June 2013, the Supreme Court in Shelby County v. Holder struck down Section 4 as an unconstitutional exercise of Congressional authority.

Writing for the majority, Chief Justice John Roberts reasoned that the 2006 re-authorization designated the covered states through an outdated formula that Congress had last revised in 1972. He reasoned that, “[c]overage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years…. And voter registration and turnout numbers in the covered States have risen dramatically in the years since…. Racial disparity in those numbers was compelling evidence justifying the pre-clearance remedy and the coverage formula…. There is no longer such a disparity.”

In striking down Section 4, the Court emphasized that the pre-clearance requirement represents an extraordinary degree of federal oversight into local election choices. While that oversight was necessary in 1965, the Court said, it is no longer necessary today, particularly since the African-American vote has increased substantially over the years and exceeds that of the white vote in many of the southern states, which still must clear their election rules with what Chief Justice Roberts refers to as “federal authorities in Washington, DC.” Of course, as characterized by the conservative justices, that kind of oversight sounds more bureaucratic than town hall or even the state capitol.

Anyone reading Supreme Court decisions in controversial cases knows that even the conservative justices are capable of issuing well-written and comprehensive rulings that can make sense in isolation. It is when the reader turns to the dissenting opinions that we learn what the majority is really up to. In the VRA case, Justice Ruth Bader Ginsburg’s dissenting opinion on behalf of the Court’s liberal wing is devastating. Congress did not cavalierly re-authorize the VRA in 2006 and there was a logic in how it designated certain states for continued pre-clearance. In the course of legislating in this area in the mid-2000s, Congress held extensive hearings on voting rights discrimination. Justice Ginsburg, a civil rights attorney before she joined the federal bench, wrote, “[i]n the Court’s view, the very success of Section 4 of the Voting Rights Act demands its dormancy. Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated.”

Although the VRA has greatly increased the African-American voting rate since 1965, that does not mean that the states covered under Section 4 have stopped playing games with voting procedures in a manner that would suppress minority voting rates. Justice Ginsburg wrote: “In the long course of the legislative process, Congress ‘amassed a sizable record.’ The House and Senate Judiciary Committees held 21 hearings, heard from scores of witnesses, received a number of investigative reports and other written documentation of continuing discrimination in covered jurisdictions. In all, the legislative record Congress compiled filled more than 15,000 pages…. The compilation presents countless ‘examples of flagrant racial discrimination’ since the last re-authorization; Congress also brought to light systematic evidence that ‘intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 4 preclearance is still needed.’

“After considering the full legislative record, Congress made the following findings: The VRA has directly caused significant progress in eliminating first-generation barriers to ballot access, leading to a marked increase in minority voter registration and turnout and the number of minority elected officials…. But despite this progress, ‘second generation barriers constructed to prevent minority voters from fully participating in the electoral process’ continued to exist, as well as racially polarized voting in the covered jurisdictions, which increased the political vulnerability of racial and language minorities in those jurisdictions. Extensive ‘[e]vidence of continued discrimination,’ Congress concluded, ‘clearly show[ed] the continued need for Federal oversight’ in covered jurisdictions. The overall record demonstrated to the federal lawmakers that, ‘without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.’”

Justice Ginsburg added that the covered jurisdictions under Section 4 are still trying to impose rules that would suppress minority voter participation. “The surest way to evaluate whether that remedy remains in order is to see if pre-clearance is still effectively preventing discriminatory changes to voting laws.” Reviewing the legislative record, Justice Ginsburg wrote, “On that score, the record before Congress was huge. In fact, Congress found there were more [Department of Justice] objections between 1982 and 2004 (626) than there were between 1965 and the 1982 reauthorization…. All told, between 1982 and 2006, DOJ objections blocked over 700 voting changes based on a determination that the changes were discriminatory…. Congress found that the majority of DOJ objections included findings of discriminatory intent, and that the changes blocked by pre-clearance were ‘calculated decisions to keep minority voters from fully participating in the political process.’ On top of that, over the same time period the DOJ and private plaintiffs succeeded in more than 100 actions to enforce the Section 4 pre-clearance requirements.” The dissent goes on to outline the many ways that the covered states and local jurisdictions have tried and failed to implement racially-discriminatory voting procedures. “The number of discriminatory changes blocked or deterred by the pre-clearance requirement suggests that the state of voting rights in the covered jurisdictions would have been significantly different absent this remedy. Surveying the type of changes stopped by the pre-clearance procedure conveys a sense of the extent to which Section 4 continues to protect minority voting rights.”

The jurisdictions cited in Justice Ginsburg’s dissent are no longer covered under Secion 4, because that section is no longer operative. The 5-4 conservative majority struck it down as unconstitutional on June 25, 2013. While the majority focused on states’ rights and its technical objection that Congress based the 2006 VRA authorization on a 40-year-old formula, the dissent—all of them appointed by Democratic presidents—focused on the Constitution’s broad voting rights protection under the Fifteenth Amendment and how Section 4’s Congressional reauthorizations have prevented the covered jurisdictions from imposing objectionable voting barriers.

The conservative majority made scant reference to the dissent’s evidence about continued efforts to suppress minority voting. Chief Justice Roberts wrote, “[r]egardless of how to look at the record, however, no one can fairly say that it shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965 and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time.”

Whether continued voter suppression efforts are “rampant” turns on how you view the evidence. Justice Ginsburg’s dissent certainly lays it out for the reader. Equally important, it was Congress’s bi-partisan judgment that Section 4’s reauthorization was necessary. While Supreme Court majorities in the past have deferred to congressional judgment reached after extensive legislative hearings and fact-finding, the current majority swept it aside in gutting this monumental civil rights law.

Employment Discrimination

The 5-4 conservative majority issued other decisions at the end of the term that further scale back civil rights protections. In University of Texas Southwestern Medical Center v. Nassar, the Court held that, under Title VII of the Civil Rights Act of 1964, employees who claim they suffered retaliation for objecting to workplace discrimination must show that their termination or demotion would not have happened “but for” the employee’s objections. That ruling makes it harder for plaintiffs to win their retaliation cases. Many federal courts had previously said that the plaintiff could win if the employee’s opposition to workplace discrimination was among several motivating factors in the negative employment decision. That lower burden of proof is no longer operative. Under the Supreme Court’s new ruling, the employer’s thin-skinned reaction to the employee’s anti-discrimination activity must tip the scales in order to constitute unlawful retaliation. Just as Chief Justice Roberts worried about state sovereignty in the voting rights case, the conservative majority telegraphed its concerns in the Title VII retaliation case: a lower burden of proof for the plaintiff might leave employers vulnerable to employees who will try to extort money from them through litigation as cover for the employee’s incompetence. Writing for the majority, Justice Anthony Kennedy stated that “The proper interpretation and implementation of [Title VII’s anti-retaliation provision] and its causation standard have central importance to the fair and responsible allocation of resources in the judicial and litigation systems. This is of particular significance because claims of retaliation are being made with ever-increasing frequency…. In addition, lessening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment.”

In another employment discrimination case decided in June 2012, the 5-4 majority made it harder for sexual harassment victims to prevail in court. Under Title VII, the employer is automatically liable for sexual harassment committed by a supervisor. Along with the Equal Employment Opportunity Commission, many federal courts around the country had interpreted Title VII to mean that a supervisor is anyone with authority to make work-related assignments. That fits with the practical realities of the workplace, where supervisory authority is often decentralized. In Vance v. Ball State University, the Court adopted a rigid definition of “supervisor”: only those specifically “empowered to take tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’” The conservative majority emphasized that this bright-line legal standard will make it easier for the jury to decide cases. That may be true. But, as the dissenting justices observed, the majority’s interpretation “ignores the conditions under which members of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the Nation’s workplaces.”


Over the last decade, the conservative majority has quietly pushed to have more civil disputes resolved through arbitration, a private civil justice system that denies the parties broader procedural protections available to them through the courts. Employers and corporations like arbitration because it streamlines the process and yields the plaintiffs less money in damages. Many employees sign away their rights when the commence employment, agreeing to resolve any workplace disputes through arbitration. While the employees voluntarily agree to arbitrate these disputes, they have little choice. If the employees object to the agreement, they will not get the job. Consumers also sign away their rights when they agree to use private services, like credit card agreements. The conservative majority is increasingly endorsing the use of private justice. The five-justice conservative majority did it again in June 2013.

In American Express v. Italian Colors Restaurant, the Court examined an agreement between the credit card company and merchants that honor American Express. That agreement requires that all disputes be resolved by arbitration. It provides that there “shall be no right or authority for any Claims to be arbitrated on a class action basis.” The suit arose when merchants brought a class action against American Express for violating the federal antitrust laws. The merchants argued that American Express abused its monopoly power in the market for charge cards to force merchants to accept them at rates approximately 30 percent higher than the fees for competing credit cards. In response to the lawsuit, American Express invoked its arbitration agreements with the merchants and sought to strike the class action and require the individual merchants to arbitrate these disputes individually under the Federal Arbitration Act. The problem with this solution is that it would cost too much money for the merchants to litigate their disputes individually. An economist found that “the cost of an expert analysis necessary to prove the antitrust claims would be ‘at least several hundred thousand dollars, and might exceed $1 million,’” while an individual plaintiff might recover, at most, about $38,000 in damages. Without the ability to pursue a class action with other merchants, it simply would not pay for the merchants to litigate their claims individually. The lower federal court said the arbitration agreement was unenforceable because the merchants “would incur prohibitive costs if compelled to arbitrate under the class action waiver.” The Supreme Court overturned that ruling.

Writing for the majority, Justice Antonin Scalia summarized the merchants’ arguments: invalidating the arbitration agreement “serves to harmonize competing federal policies by allowing courts to invalidate agreements that prevent the ‘effective vindication’ of a federal statutory right. Enforcing the waiver of class arbitration bars effective vindication, respondents contend, because they have no economic incentive to pursue their antitrust claims individually in arbitration.” The Supreme Court swept these concerns aside in adopting a rigid rule that ignores the realities of David vs. Goliath disputes. Justice Scalia wrote, “The fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy.” In theory, the merchants have a claim against American Express. The prohibitive cost of enforcing their rights does not factor into whether the anti-class action prohibition is enforceable.

This is as pro-corporate a decision as you’ll ever see from the Supreme Court. The only bright spot is the lively dissenting opinion from Justice Elena Kagan, an Obama appointee who is distinguishing herself with a cutting writing style. She wrote: “Here is the nutshell version of this case, unfortunately obscured in the Court’s decision. The owner of a small restaurant (Italian Colors) thinks that American Express (Amex) has used its monopoly power to force merchants to accept a form contract violating the antitrust laws. The restaurateur wants to challenge the allegedly unlawful provision (imposing a tying arrangement), but the same contract’s arbitration clause prevents him from doing so. That term imposes a variety of procedural bars that would make pursuit of the antitrust claim a fool’s errand. So if the arbitration clause is enforceable, Amex has insulated itself from antitrust liability—even if it has in fact violated the law. The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse. And here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad. That answer is a betrayal of our precedents, and of federal statutes like the antitrust laws.”

The Conservative Majority Is Unshakable

The conservative majority has been scaling back civil rights enforcement for years. Choosing the best examples is like shooting fish in a barrel. Here is a taste.

Earlier in the 2012-13 term, in Clapper v. Amnesty International, the 5-4 majority said that writers and academics had no standing to challenge the federal government’s wiretapping policies. While the plaintiffs altered their behavior to avoid telephonic communication with sources that the federal government was presumably targeting for possible terrorist behavior, the Court held that the plaintiffs were not sufficiently impacted by the Foreign Intelligence Surveillance Act because their fears that the government would imminently wiretap their sources was too speculative. This decision makes it unlikely that anyone will ever be in a position to challenge the constitutionality of FISA.

In the 2011-12 term, the Court gave correctional facilities the green light to subject all incoming inmates to degrading strip searches, including those with non-violent offenses. This ruling covers local jails, not simply state prisons that house violent felons. Writing for the 5-4 majority, Justice Kennedy rejected the plaintiff’s Fourth Amendment concerns and instead deferred to the judgment and expertise of law enforcement officials who claim the searches are necessary for jail security.

The 5-4 conservative majority solidified in 2006, when Justice Alito joined the Court. He replaced moderate conservative Justice Sandra Day O’Connor, who sometimes issued practical decisions that avoided hard-and-fast rules. In this approach, Justice O’Connor was often the swing vote. Justice Alito infrequently employs a practical approach, opting instead for a black and white conservative philosophy. Alito’s arrival represented the most dramatic change on the Court in the last 20 years.

The year that Justice Alito was sworn in, he joined a 5-4 majority that made it more difficult for government whistleblowers to challenge their wrongful terminations. In that case, Garcetti v. Ceballos, the Court said that public employees do not engage in free speech when their whistleblowing grows out of their official job responsibilities. This means that the employees with the greatest knowledge of public malfeasance, i.e., the comptroller who knows about squandered money or a public health official who discovers a public safety threat, have the fewest whistleblowing protections. These First Amendment cases are now routinely dismissed by the federal courts. Prior to Garcetti, in the Second Circuit, the jurisdiction that includes New York, Connecticut, and Vermont, public employee speech rights were regularly vindicated. Since 2006, the year the Supreme Court issued Garcetti, to my knowledge, exactly two such cases have survived dismissal in the Second Circuit Court of Appeals. Despite efforts by plaintiffs’ lawyers to convince the Supreme Court to take up this issue again to clarify when employees may speak out without fear of retribution, the Court has declined to revisit the issue.


Stephen Bergstein is a civil rights attorney in upstate New York.