Nearly all cultures have myths about bullies that use their size and authority to oppress and injure individuals who lack the power to defend themselves. Even the Christian bible features a story from the Hebrew Scriptures about a domineering giant (Goliath) who is slayed by a much smaller child (David) with a slingshot. The story alludes to the fact that regardless of the foe’s size and power, with assistance, a less powerful child can easily defeat a giant. In America, there are giants in the business community who dominate and injure individuals because they have powerful legal representation and unlimited resources to crush the little guy in the justice system by drawing out a case for years. There have been instances when powerful corporations meet their matches and lose lawsuits because many separate individuals band together to form a class that is able to afford powerful legal representation equal to corporate giants, and with a level playing field, corporations are not guaranteed victory.
Within the past month, the ability of individuals to band together to take on powerful corporations was dealt a crushing blow when the conservative Supreme Court disallowed class action status to millions of women who suffered pay discrimination at the hands of retail giant Wal-Mart. It is bad enough that the High Court deprived the women an opportunity to plead their case before the court, but the real damage was the precedent that disallows individuals from joining forces to fight corporate injustice and damaging business practices. Within the past week, that precedent was cited by a Michigan judge who was set to hear a case between a hundred land owners and corporate giant Dow Chemical.
The Michigan case involved landowners who complained that the chemical giant spread dioxin, a highly toxic and cancer-causing byproduct of chemical manufacturing process through the Tittabawassee and Saginaw Rivers and into Lake Huron. When rivers downstream flooded, sediment laden with dioxin was deposited on properties in the floodplain. Soil samples of floodplain properties revealed dioxin contamination thousands of times higher than Michigan allows and prompted health officials to warn property owners to wear masks while mowing their lawns, keep children from playing in dirt near their homes, avoid eating fish and livestock raised in the floodplain, and to take other precautions to keep from being poisoned. The land owners say property values are diminished and they are not able to fully use their properties because of the contamination; not to mention the health damages they may have already been subjected to. The judge, Leopold Borello, had granted class status for the group but reversed his decision because, although the case met Michigan guidelines for class status, the Supreme Court’s Wal-Mart decision created new rules for what a group must have in common with one another in order to be considered a class.
The difference between the cases is that one was in federal court and should have no bearing on Michigan certifying a class action but the judge still acquiesced to the corporate giant’s demand. The entire issue does not bode well for future class actions in Michigan because the state Supreme Court is a conservative majority that tends to favor corporations over individuals. The case also shows the long-lasting damage the conservative majority U.S. Supreme Court continues to wreak on America. Republicans constantly decry the dangers of liberal activist judges legislating from the bench, but the current High Court has been making legislation for Republicans since last year’s Citizens United ruling allowing unlimited secret campaign funding.
Republicans have attempted to protect corporate malfeasance for years with calls for tort reform to eliminate individual’s ability to file suit against corporations guilty of causing injury from negligence and discrimination. Now that the High Court has bypassed the legislative process that resisted passing tort reforms, Republicans have won and corporations no longer have to worry about being sued by a class. Individuals may file suit against guilty corporations, but if a single person can even afford to hire an attorney, they will hardly be a match for a corporation’s legal team, and often, a case will hang on for many years until the plaintiff runs out of money or dies.
If people did not mind the Supreme Court disallowing women from suing Wal-Mart as a class to recoup lost wages, they may have a different opinion when a chemical company poisons their land and jeopardizes an entire community’s health. Dow Chemical has a record of poisoning the environment for decades, and with one Supreme Court decision, they can continue with impunity regardless how many lives they destroy or how many thousands of acres of land they poison for decades. Part of the problem now is that besides being let off the hook for poisoning land surrounding the chemical plant, they can ignore environmental protections because without the chance of lawsuits, they will say they are not guilty of injuring anyone. At least when a class action is won by plaintiffs, it proves there was damage done. Without a judgment, a corporation will be innocent regardless how much damage they caused.
The Supreme Court’s decision in the Wal-Mart v. Dukes case will affect more than just Michigan property owners and women who suffered gender discrimination. If a pharmacological company produces a drug that kills or maims thousands of Americans, there is little if any recourse for victims to sue for damages. If one family files a negligence lawsuit against a drug manufacturer, they have little chance of ever winning because a corporation’s legal team will draw out the proceedings until the survivors are dead. The other insidious aspect is that without a class action that costs a corporation hundreds-of-millions of dollars, there is no deterrent to bad practices. Although no amount of money can restore health or bring back a loved one, the only thing that corporations understand is monetary damages. If Dow Chemical, for example, had to buy tainted property, pay damages to land owners, and pay fines and penalties, they may change their unsafe practices. With the Supreme Court letting corporations off the hook, there is no reason for them to ever change.
The Supreme Court has played a major role in transforming America into a country that can no longer protect its citizens, and two of the Justices have been educated by the Libertarian Koch brothers. One of the main goals discussed at the Koch Industries policy meeting was promoting conservative judges that will protect corporations from being accountable for their actions. Apparently, Antonin Scalia and Clarence Thomas paid attention to Charles and David Koch and dutifully followed their recommendations to protect free enterprise at any cost. So far, the cost has been borne by millions of female Wal-Mart employees and now, over a hundred property owners in Michigan. If anyone thinks for a minute that this is the end of the problems, they are naïve and grossly mistaken. It is just a matter of time before an activist judge throws out lawsuits against BP for the Gulf of Mexico oil spill, and right on cue, BP has asked a judge to toss a class-action against the oil company because there is now a precedent to do so.
The American people are suffering the effects of corporatism being pushed by Republicans in Congress, and now that a second branch of the government has joined the fight against the people, there is little hope for justice or accountability. The property owners in Michigan have no recourse to ever recoup damages from Dow Chemical Company’s negligent actions and they are stuck living on poisoned land that cannot be sold or reclaimed. Dow Chemical cannot be forced to clean up the tainted floodplains because without a judgment for liability, they have done nothing wrong. The Supreme Court has taken the only weapon the little guy has to fight corporations, and when the next toxic spill, bad drug, or oil pipeline explosion occurs, the victims will have to accept responsibility for being in the wrong place at the wrong time. It is unfortunate, but the High Court has made everyplace in America a danger zone because corporations have no impetus to follow safety standards or protect the environment.
With America turning into a hostile environment for people, there is nothing secure any longer. The Supreme Court has replaced Congress in making laws and with no recourse to recall or impeach the corporatist majority, there is little for the American people to do except wait to be poisoned, discriminated against, or deprived of our diminishing freedoms. It is hardly worth fighting the corporate giants or Republicans anymore because the Supreme Court has taken the only weapons the people had and handed them over to the corporate giants. The saddest aspect is this is not a myth in the bible or a cultural fairy tale, but an ongoing horror story created by conservatives on the Supreme Court; and they are just getting started.