Text & History in the Supreme Court 2008 Term

While the Supreme Court Term that starts today doesn’t yet have the constitutional blockbusters of last year, it nonetheless holds some cases that could be the sleeper hits of the constitutional canon. From government accountability to federalism to voting rights, the Court will have the opportunity to significantly strengthen—or constrict—several fundamental constitutional principles. In all of these cases, the text and history of the Constitution speak to the questions presented and point to progressive outcomes.

Corporate Accountability & Constitutional Federalism

Perhaps the most talked about case in the run-up to the October 2008 term is Wyeth v. Levine, a personal injury suit brought by Diana Levine, a musician whose arm was amputated after complications following injection of an anti-nausea drug made by Wyeth. Wyeth has asked the Supreme Court to overrule the $6.7 million verdict Levine won after trial because the company asserts that federal law preempts a state law personal injury action against a drug manufacturer for failing to include label warnings when the drug at issue met the labeling requirements of the U.S. Food and Drug Administration.

CAC filed a brief in support of Levine to explain to the Court that neither the Constitution nor the principles behind it support such a broad intrusion into the states’ ability to protect their citizens against unsafe products, particularly where Congress has not expressed its intent to preempt state law. The Supremacy Clause of the Constitution, which states that valid federal enactments shall be the “supreme” law of the land, does preempt State law when it directly conflicts with federal law or when Congress has specified in legislation that it intends to displace State law. But it does not authorize the courts to look behind the text of a federal law to find “purposes” or objectives that, in its view, would be frustrated by a long-standing state-law remedy. CAC argues in its brief that preempting State law based on implied congressional purposes runs counter to the healthy federal-state balance established by the Constitution, the text and history of the Supremacy Clause, and the constitutionally designed separation of powers between our legislative and judicial branches.

Government Accountability for Violations of Constitutional Rights

Civil damages actions are not only a means of ensuring accountability in the corporate context—they have also been used since the Founding to protect against government misconduct.

As a brief filed for this new Term by CAC explains, the Framers of the Constitution heartily believed that civil damages suits were a key mechanism for checking government abuses of power; these lawsuits allowed any citizen to call a government official to account in a public courtroom before a jury of the people. Two cases this Term test that long-standing view in two controversial contexts: the “war on terror” and prosecutorial misconduct.

The case of Van de Kamp v. Goldstein raises the question of whether senior members of the Los Angeles County District Attorney’s Office can be held accountable for constitutional violations that occurred because they failed to set up policies and procedures for their office that would have better secured a fair trial for criminal defendants in their district. Thomas Goldstein, a former Marine and college student, was harmed by this systemic failure when he was wrongly convicted of murder based on the testimony of a jailhouse informant—appropriately named Eddie Fink—who was seeking to curry favor with the DA’s office and get a reduced sentence for his own crimes. After serving more than 20 years in prison, Goldstein’s conviction was overturned and he sued supervisors in the DA’s office under Section 1983 of the Civil Rights Act.

Section 1983 provides the remedy of a civil action when government actors violate civil and constitutional rights. However, the Supreme Court has held that certain judicial officers are absolutely immune from suit under Section 1983—even if they knew their actions violated a defendant’s constitutional rights. The district attorneys argue that they are immune from suit, relying on the 1976 case Imbler v. Pachtman, which held that prosecutors, like judges, are entitled to absolute immunity when undertaking a judicial function.

CAC filed a brief in support of Mr. Goldstein arguing that absolute immunity for prosecutors is contrary to the text, history and principles of the Constitution and the 1866 Civil Rights Act. This case will test whether the Roberts Court will act to expand access to the courts for victims of government misconduct or whether it will continue to shield state actors from the consequences of constitutional violations.

Similarly, the case of Ashcroft v. Iqbal asks whether high-level officials of the Bush administration are shielded from being sued by Muslim men who say they were jailed and abused after the attacks of September 11thIqbal alleged that FBI Director Robert Mueller and former Attorney General John Ashcroft were aware of the mistreatment of detainees based on religion and ethnicity and bear responsibility for this constitutional violation.

The 2nd Circuit Court of Appeals allowed Iqbal’s case to go forward to permit limited discovery in the case, including the possible deposition of Ashcroft and Mueller on post-9/11 decisions about detainee treatment. The solicitor general has argued that Ashcroft and Mueller are shielded from the lawsuit by the doctrine of “qualified immunity” because the law does not clearly establish that Iqbal’s claimed mistreatment violates the Constitution. In addition to the question of whether high-level officials should be held accountable for violations of Iqbal’s rights, the case could force the Court to decide whether a violation occurred at all: under the Court’s current case law, it would need to determine whether the post-9/11 policies violated the Fifth Amendment before they turn to the question of whether Iqbal’s right against such treatment was “clearly established.”Even if the Court decides to shield Ashcroft and Mueller from suit, a ruling that their 9/11 policies violated the Constitution would nonetheless be a significant blow to the Bush Administration’s handling of “war on terror” detainees.

The Reconstruction Amendments & Voting Rights

Befitting the focus on voting in a presidential election year, the Court has accepted one Voting Rights Act case and appears poised to accept another one, which could be the most important voting rights case in a generation.

Bartlett v. Strickland, which will be argued October 14, raises the question of when minority voters may prevail on a vote dilution claim under the Voting Rights Act when states redraw legislative districts. Section 2 of the Voting Rights Act of 1965 prohibits any “voting qualification or prerequisite to voting or standard, practice, or procedure . . . which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” The statute further explains that a violation of Section 2 is established when, “based on a totality of circumstances,” it is shown that members of a protected class of citizens have “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”

In Bartlett, minority voters in one of North Carolina’s state legislative districts had successfully elected an African-American candidate by building effective coalitions (minority voters in the district did not constitute a numeric majority). County officials challenged the 2003 state redistricting plan that created this district, arguing that it violated the state constitution’s prohibition against splitting counties into more than one legislative district. The state defended this redistricting by arguing that it was required to cross county lines to comply with Section 2. The county argued that Section 2 vote dilution claims can only be asserted where minorities represent 50% of the population: districts in which minority voters have created effective coalitions to elect minority candidates are not protected by the Act. The North Carolina Supreme Court agreed, applying a strict 50% rule to Section 2 vote dilution claims.

The State and minority voters, which asked the Supreme Court to review the case, argue that the bright-line 50% rule runs counter to the ultimate objective of the Voting Rights Act and the text of the statute, which focuses on the totality of the circumstances.

Beyond the compelling statutory arguments made by the petitioners in Bartlett, the text and history of the Reconstruction Amendments suggests that the North Carolina Supreme Court’s circumscribed view of Congress’s power to protect against discrimination in voting is misplaced. In the 14th Amendment, which guaranteed equal protection of the laws to all those within the United States, and the 15th Amendment, which guaranteed the right to vote regardless of race or color, the Constitution not only enshrines inspirational guarantees of equality and liberty—it provides Congress the power to ensure those constitutional ideals become reality.

Congressional power to enforce the guarantees of the Reconstructions Amendments is raised even more directly in Northwest Austin Municipal Utility District No. One v. Mukasey, a Voting Rights Act case that the Court could agree to hear before the end of the year. The Supreme Court is widely expected to hear this broad-based challenge to Congress’s 2006 extension of the 1965 Voting Rights Act, the foundational statute that prevents voting rights from being denied or abridged on the basis of race or color.

The framers of the Reconstruction Amendments, including the 15th Amendment, intended to grant broad authority to Congress to enforce the Amendments’ critical guarantees, such as the right to vote — a power the Reconstruction Framers saw as full as any other constitutionally granted power, but which has been significantly limited in the last few decades, particularly in the 14th Amendment context. If the Northwest Austin (or “NAMUDNO”) case is considered by the Court, it could provide the opportunity to rethink, based on a faithful dedication of the Constitution’s text, history, and principles, the Court’s recent trend to narrow Congress’s ability to enforce fundamental rights.

As the above cases demonstrate, while the October 2008 Term doesn’t yet have headlining cases involving hot-button topics such as Guantanamo or gun rights, some of its cases do raise issues at the heart of our constitutional democracy. Congressional enforcement power and civil actions against corporate and government wrongdoers may not be as immediately tantalizing as the headline cases from last year’s term, our Founding Framers enshrined the ability to hold the powerful to account into the Bill of Rights, just as the Reconstruction Framers expressly built federal individual rights protection into the post-Civil War Constitution. Whether the Roberts Court restricts or respects Congress’s power to protect our fundamental freedoms—as well as our own power to protect against government and corporate misconduct—could have an even greater impact on the constitutional landscape than the blockbusters of last Term.

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