Many in the nation this holiday are trying to figure out how to celebrate in the wake of the U.S. Supreme Court’s unprecedented reign of destruction against laws and principles that were supposed to make us feel safe. Basic personal liberties and public protections – gone. Suddenly, many of us feel unsafe, unprotected, chaotic in ways that we didn’t feel just a month ago. Some are asking the question this July 4, “is the Court’s super-majority our the new six-headed King George III, turning the Court into a branch of government not just tyrannically ruling above the other two but essentially, demanding to become them?”
One case that particularly raises this question, was the recently-decided West Virginia vs. Environmental Protection Agency. The public protection implications of this case transcend the extreme (but hopefully not permanent) damage to our nation’s ability to fight climate change. More broadly, this case turns the Court into a mini-legislature, giving itself arbitrary power to void any agency regulation it dislikes, including complicated policy rules that it has no real clue about. And by “dislike,” we mean disliked by those who have its ear: industries that harm or kill people. After all, this is not just a far-right extremist Court. It’s also a corporate Court, run by “Chief Justice Roberts: America’s Chief Guardian of Corporate Power.”
This case fundamentally undermines the ability of the federal government to protect us from harm through the time-honored rule-making process. But it’s not like this development came out of the nowhere. We’ve been on this course since Ronald Reagan took office, when corporate lobbyists and their political allies started making tremendous strides weakening regulations and safety standards for prevention of harm to Americans. When George W. Bush occupied the White House, he attempted to use administrative agencies to wipe out the state common law legal rights of anyone hurt by the very dangerous products and practices that the agencies themselves failed to prevent.
Luckily, Bush’s tricky scheme didn’t work. And that’s where we find one area of hope and optimism this Independence Day. The founders of this nation may have rejected much about English rule but they clearly valued one thing, which they brought over to begin our legal system: the common law. The common law is where tort law generally comes from. It continues to be maintained and preserved by state court judges and juries throughout the nation, who make decisions every day about who’s responsible for harm when someone’s been hurt. While agency regulations are designed to prevent harm, lawsuits allow justice and accountability after harm has occurred. In this way, they perform an important societal function: they act to deter misconduct not only by imposing financial liability on wrongdoers, but also by forcing disclosure of important internal information about products, drugs, toxics and unsafe practices and processes, and allowing dissemination of this information to the wider public. See plenty of examples here.
The common law possesses many qualities that, at least for now, are mostly beyond the Supreme Court’s reach (thank goodness). Common law is state law. As there is no such thing as federal common law, there are limits on how much mischief the Court can do to it. Common law is not codified in books, so it doesn’t lend itself to “textualism” abuse. Its whole point is to evolve as society changes.
Plus, it’s actually mentioned in the U.S. Constitution! The Seventh Amendment preserves the right to a civil jury trial in “suits at common law.” In fact, the right to civil jury trial was among our earliest rights as Americans. The American colonists believed that trial by jury was an important right of freedom and liberty.
That said, we are certainly not Pollyanna about this. Before the mid-1970s, the common law generally operated without much political interference, having evolved through the courts for generations - indeed centuries - to afford citizens a means to challenge injustice and negligence. But that changed after the 1970s when corporate America birthed the tort reform movement to prevent injured people from going to court, and to take power and authority away from juries. While that movement has made some inroads, its ultimate goal - replacing the common law with a statutory structure over which their political action committee money can have more control - has failed. The roots of civil juries and state common law run too deep in this country.
That doesn’t mean the Roberts Court hasn’t also tried, however. In fact, two huge problems have emerged in recent years, where the Court has at least indirectly interfered with state common law: federal preemption and forced arbitration. In a couple cases, the Court’s outcome-oriented interpretation of preemption has overridden legal rights provided by state common law. And the Roberts Court has done even more damage to individual rights by allowing companies engaged in misconduct to unilaterally block class action lawsuits by those they’ve harmed, and force victims to resolve cases in private, rigged arbitration. Only Congress can turn this trajectory around and until Congress gets better, we all know how unlikely that is. (Vote, people!)
But for the most part, broad congressional attempts to federalize state common law have failed, and they are doing so on a growing bi-partisan basis. They failed with products liability legislation in the 1990s, with medical malpractice legislation in the early 2000s and again in 2017, and with pandemic-related state liability shields in 2020.
So while the Court has been busy using an entirely made-up doctrine to tell agencies they can’t do their job when it comes to solving big problems through regulatory public protections, we are thankful state common law is still a strong protective force in America. This Independence Day, it’s worth thanking our founders – and England - for that.
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