Two Supreme Court Decisions Narrow Access to Justice for Ordinary Oregonians

An important thing to understand about the US Supreme Court is that its rulings can often seem narrow and technical even as they have sweeping repercussions for every American. That was the case with two rulings that were issued late last month, just as the court’s annual term came to an end. In both cases the Court might have appeared to be focused on narrow issues that concern mainly other courts and lawyers when, in fact, it was issuing rulings that will have a profound impact on our justice system in general and on Americans’ ability to seek redress in our courts.

The first case, Ziglar v Abbasi focuses on the arrest and detention of hundreds of Muslim men in the wake of 9/11. Though most of the men were held for immigration violations they were treated as suspected terrorists and, in numerous cases, subjected to unusually harsh interrogations and prison conditions. A group of these men sued the government for damages, citing a 1971 Supreme Court decision that allowed state and local officials to be sued for damages when they violate a person’s constitutional rights. The legal question seemed fairly straightforward: one might assume that if state officials can be sued for violating people’s rights federal officials too can be sued when they do so. By a vote of 4-2, however, the Supreme Court disagreed (two justices recused themselves from the case and the newest justice, Neil Gorsuch, had not yet joined the court when the case was argued).

The important thing to understand is that as a legal precedent effecting ordinary Americans the fact that this case involved egregious rights violations in the aftermath of a terrorist attack is not the point. Using the national security implications of that extreme event as a pretext the court has made it far more difficult for any citizen to sue any employee of the federal government. Put simply: this is not about terrorism and national security, it is about our constitutional right to have access to the courts when a government official abuses his or her power.

If Abbasi made it harder to sue people who work for the government, Bristol Myers Squibb v Superior Court continued the recent trend of making it harder for average people to take on large and powerful corporations in court.

The case involved a California lawsuit focused on the blood-thinning drug Plavix. A group of plaintiffs from across the country sued the drug’s maker in a California court but the company argued that the non-California plaintiffs should not have been allowed to join the suit. At issue were, again, earlier court rulings allowing out-of-state people to join lawsuits if the company in question was being sued in a place where it did significant business. In this case, despite having large operations and sales in California the company argued that since the state is neither the site of its corporate headquarters nor the place where it is incorporated its presence there was, in legal terms, small. As a result, it said, non-Californians should be barred from making claims against it in a case filed in California.

In this case the court was not closely split: the vote was 8-1 in the company’s favor, but this is another case where what appears at first to be a narrow and highly technical ruling has, in fact, provided big companies with powerful tools for evading accountability. When a major drug company can claim that its operations in America’s largest state do not give it, legally speaking, a significant presence there something is very wrong. When legal technicalities are used to deny Americans access to our courts that becomes a threat to our very system of government and accountability.

As a Portland attorney I have always worked to ensure that everyone has access to our courts. I have written in the past about the threats posed by arbitration agreements and other devices companies use to shield themselves from accountability for their own negligence. When the highest court in the country assists both companies and the federal government in that task it is a very sad day.

See the link below for a much more detailed discussion of the facts and the legal issues involved in both of the cases discussed here.


ABA Journal: Chemerinsky: Two end-of-term decisions close the courthouse doors to those who have been injured

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