Commentary - July 2, 2013
10:47 am
Wed July 3, 2013

US Supreme Court's Fireworks

With so many things happening in Montana and across the country affecting the civil justice system, I had a hard time picking a topic for tonight. The U.S. Supreme Court ended it's term in June with a bang. There was the Windsor case striking down the federal Defense of Marriage Act, and the Perry case that the Court sidestepped but in effect allowed the nullification of California's Propisition. The Court rejected a key provision of the Voting Rights Act in Shelby County, and sidestepped a decision on affirmative action, with indications that the law will change to strictly scrutinize racial classifications. Then there was the Bartlett case in which the Court expanded protections for the corporate makers of generic drugs. Let me see if I can tie them all together.


Thursday is Independence Day – the day we celebrate our declaration of independence from England. After securing independence, our founders set out to form a governing structure. They tried governing our new country under the Articles of Confederation, but found that a system of strong state powers and relatively weaker federal powers didn't work well. In 1787 our Constitution was adopted, to be ratified by the states in 1789 with the assurance that a Bill of Rights would be proosed and ratifed, and those first ten amendments were ratified in 1791.

One of our core constituional rights is embodied in the Fifth Amendment, which provides in part that no person shall be “deprived of life, liberty, or property, without due process of law” - often referred to as the Due Process clause. This amendment was in reaction to abuses by the sovereign.

In the Windsor case the divided Court found that a federal law that denied federal benefits to same sex persons married legally under a state's laws violated the Fifth Amendment. The majority in effect found the federal law to be an abuse of power by the sovereign.


When we bestow near diety status on the genius of our founding fathers, we tend to forget that in the Constitution black slaves were counted as three fifths of a person, of course that was only for tax and Congessional representation purposes. There was no need to protect slaves from being denied the right to vote – slaves couldn't vote, let alone attend a state university.

In the voting rights case, upholding States' powers under the Tenth Amendment over individuals' rights to be free from racial discrimination under the Fifteenth Amendment, the majority of the Court decided 180 plus years of institutional racism has been eradicated in the past 50 years. As Justice Ginsburg noted in her dissent, the majority throwing out the preclearance part of the law “when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Most of us remember our grievances that led to the American Revolution as being against King George.  What most of us don't remember, or never learned, was that many of our grievances were with King George carrying out the bidding of the few corporations that dominated colonial America, like the East India Company – the original tea partiers threw its tea into Boston Harbor. In 1776 we declared our independence not only from British rule, but also from the corporations of England that dominated and controlled us, and extracted wealth from us.

Another of the rights insisted upon in order to assure passage of our constitution was the right to trial by jury in civil matters – the Seventh Amendment. It is the means by which we hold our government accountable. It also ensures that all men and women are entitled to a redress for wrongs done by others, including corporations. As John Adams once said about jury trials, "We have not envisioned a better fortification from being ridden like horses, fleeced like sheep, worked like cattle and fed like hounds."

There is more than a bit of irony that as we celebrate our independence this year, we are experiencing ever more of the corporate dominance that we rebelled against at our nation's birth. Our country's founders retained a healthy fear of the threats posed by corporate power and sparingly granted corporations a limited business role. As Thomas Jefferson said, "I hope we shall crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government in a trial of strength, and bid defiance to the laws of our country."

The moneyed interests of corporate power have been chafing at the reigns of the the civil justice system and the right to trial by jury since our country's inception. In the Barlett case corporate power won, again. The Court held that state laws could not be used to hold a generic drug manufacturer responsible for the harms its products cause. What harm? “Sixty to sixty-five percent of the surface of Karen Barlett's body deteriorated, was burned off, or turned into an open wound" due to the drug - too bad, too sad according to the Court's majority.


It seems the Windsor and Perry cases are exceptions to this Court's rule that government and corporate might rules.

It's hot and dry out there, please heed all fire warnings and have a safe and happy Fourth!


This is Al Smith for the Montana Trial Lawyers