After mourning the passing of Justice Ruth Bader Ginsburg, our attention now turns to her designated successor, Judge Amy Coney Barrett. We’ve seen this movie before. A civil rights icon dramatically expands equal protection in a brilliant legal career and is rewarded with a history-making seat on the High Court. Yet, that’s not where the story ends. In the case of both Marshall and now RBG, it appears, the final scene will be the investiture of successors who represent diametrically opposite points of view from their predecessors.
Unfortunately for Justice Marshall, the 12-year combined terms of Presidents Reagan and GHW Bush made a politically expedient retirement impossible. Perhaps with this in mind, Justice Anthony Kennedy proactively retired in 2016, making it possible to replace him with a philosophically-aligned successor, Justice Kavanaugh. On the other hand, Justice Ginsburg chose to remain on the bench, as was her right, even though Democrats simultaneously controlled the Presidency and Senate as recently as 2014.
Like Justice Marshall, Justice Ginsburg championed civil rights throughout her career. Justice Marshall started his career as a civil rights attorney, arguing and winning the landmark Brown v. Board of Education school desegregation case, before the Supreme Court, in 1954. Called the female Thurgood Marshall, Ginsburg pioneered a new era of jurisprudence that extended equal protection on the basis of sex. Both were civil rights icons, championing the disadvantaged early in their careers as attorneys and fighting for equal protection under the law.
Justice Ginsburg’s crowning achievement as a civil rights litigator was not just one case, but a prolific and systematic approach to eliminating gender-based discrimination and stereotyping by challenging, in key cases, discriminatory practices in legislation and regulations. Before her appointment, Ginsburg argued six cases at the Supreme Court, with gender equity being the common thread among them:
- Frontiero v. Richardson (1973) - This landmark Supreme Court case decided that benefits given by the United States military to the spouses of service members cannot be given out differently because of sex.
- Kahn v. Shevin (1974) - This case challenged a Florida law that granted special tax exemptions to widows but not to widowers. Ginsburg argued that the law assumed and perpetuated the idea that women were economically dependent on men, however she was unable to persuade the Court.
- Weinberger v. Weisenfeld (1975) - Here, the justices of the Supreme Court unanimously decided that the gender-based distinction of the Social Security Act of 1935 was unconstitutional. Prior to this ruling, Social Security benefits were provided only to widows and not to widowers who were parents of minor children.
- Edwards v. Healy (1975) - In this case, Ginsburg argued against a Louisiana statute that excused women from jury duty, unless they volunteered to participate.
- Califano v. Goldfarb (1977) - In another case related to unequal treatment of widows and widowers, Ginsburg successfully argued against gender-based requirements for survivor's benefits, again challenging the notion that women are more likely to be financially dependent on their spouses than men.
- Duren v. Missouri (1979) - In the final case that she argued as an attorney before the Supreme Court, Ginsburg once again challenged the idea that women should be optional on juries. She successfully convinced the Court that Missouri's practice of automatically exempting women from jury duty was unconstitutional and that it obstructed the right to a fair trial.
Appointed by President Clinton in 1993, Ginsburg, at the age of 60, was the second woman to sit on the US Supreme Court in its 212 year history. Once considered a moderate, Justice Ginsburg became the leader of the liberal wing of the Court and was known not only for her majority opinions, but also for her dissents.
Most notably, in Ledbetter v. Goodyear Tire and Rubber Company, a 2007 case about wage discrimination, the Court dismissed Lilly Ledbetter's complaint that she had been paid unfairly in comparison to her male colleagues because she did not file her claim soon enough after the discriminatory salary decision was made. Ginsburg dissented fiercely and urged Congress to take action, calling the decision "a cramped interpretation" and stating that it was "totally at odds" with the protection that Title VII of the Civil Rights Act of 1964 was meant to secure for employees.
Two years later, the Lilly Ledbetter Fair Pay Act of 2009 was signed into law by President Obama. The Act amends Title VII of the Civil Rights Act of 1964 and states that the 180-day statute of limitations for filing an equal-pay lawsuit resets with each new paycheck affected by the discriminatory action. While the gender pay gap has narrowed some in the past two decades, women still make ~80 cents to every dollar earned by men on average, with many women of color and nonbinary people experiencing an even greater disparity. Justice Ginsburg's successful plea for legislation will undoubtedly inspire future advocacy and continue to pave the way to fair pay and equal protection under the law.
So how about Justice Thomas? What was his pre-nomination path to the Supreme Court? Well, Justice Thomas, unlike Justice Marshall and Justice Ginsburg, is no civil rights hero. On the contrary, in the years prior to being appointed to the Supreme Court, Thomas was famous for his stance against racial quotas and affirmative action, which thouroughly impacted how job discrimination claims were handled at the Equal Employment Opportunity Commission (EEOC), where he served as Chairman from 1982 to 1990. In fact, during his tenure at the helm, the EEOC allowed over 13,000 age discrimination complaints to lapse beyond the statute of limitations, leaving many disadvantaged employees unable to access justice–a situation later reconciled by Congress.
As a justice of the Supreme Court for nearly 29 years, Thomas has continued to cement his position as the antithesis of Thurgood Marshall, whom he replaced, and he is widely regarded as one of the most ideologically-conservative justices currently serving. When it comes to corporate issues, Thomas leans pro-business, being in the majority opinion in cases like:
- AT&T Mobility LLC v. Concepcion (2011) - This ruling held that the Federal Arbitration Act (FAA) preempts state law, and it laid the groundwork for future diminishment of the states' regulation of arbitration. As a method of dispute resolution, arbitration often favors the defendant corporation when it comes to class actions by customers or employees, and Thomas, in this case, was in the majority opinion.
- Comcast v. Behrend (2013) - This majority opinion held that in order to be certified as a "class" in a class action, damages must be measurable on a class-wide basis. This specification would make it more difficult for employees or customers to take action against a corporation in the event of wrongdoing. Thomas was in the majority opinion.
- Lamps Plus, Inc. v. Varela (2019) - In a decision for Lamps Plus, the Court determined that all parties to an arbitration agreement should explicitly agree to class arbitration in order for it to be considered an available course of action–meaning that employees or customers who sign ambiguous arbitration agreements forfeit their right to class arbitration. Thomas concurred in this case.
- Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (2020) - Authored by Justice Thomas, the majority opinion in this case held that employers with religious or moral objections could opt out of providing contraceptive coverage to employees–a preview of other challenges to the Affordable Care Act that may come with Justice Ginsburg's successor.
Other opinions that Justice Thomas has authored further reflect his preference for curtailment, rather than expansion, of equal protection, as demonstrated in his dissent to the majority opinion that supported women's reproductive rights in Stenberg v. Carhart (2000), or in his concurrence in Vance v. Ball State University (2013), which upheld a limited definition of sexual harassment in the workplace. More recently, Justice Thomas dissented in the ruling against discriminatory jury selection processes in Flowers v. Mississippi (2019), and earlier this year, he joined Justice Alito's dissent in Bostock v. Clayton County (2020), the landmark ruling that protects LGBTQI+ employees from job discrimination on the basis of sexual orientation and gender identity.
Like Justice Thomas, Judge Amy Coney Barrett comes to the Court with a record that is the polar opposite of her predecessor. Given that Judge Barrett was so recently confirmed by the Senate for her current position, it’s unlikely that she will not be confirmed now, without some serious surprise and drama. So, let’s make the safe assumption that, drama aside, she will soon be a justice of the Supreme Court. What kind of justice will she be?
Also like Thomas, her climb toward this important and powerful seat on the Supreme Court has involved no heroic stance to expand equal protection for women or any other historically-disadvantaged groups. Like Justice Thomas, Judge Barrett has curtailed equal protection for disadvantaged groups and taken pro-business positions while serving on the U.S. Court of Appeals for the Seventh Circuit.
Our analysis of Supreme Court decisions since Justice Kavanaugh's confirmation in late 2018 shows that–in cases where business interests are in conflict with consumer, employee, or other non-corporate interests–more than 60% of opinions (including majority opinions, concurrences, and dissents) have favored businesses. While Justice Thomas, at 82%, has contributed the highest ratio of pro-business opinions as a current sitting justice, Judge Barrett, at 83%, has exceeded Thomas' output in the same timeframe while serving on the Seventh Circuit, demonstrating that she may indeed be his judicial doppelgänger. Her pro-business votes and opinions include:
- Herrington v. Waterstone Mortgage Corporation (2018) - Judge Barrett authored the opinion in this case, which held that the courts, not an arbitrator, could decide whether or not the parties to an arbitration agreement have agreed to participate in class arbitrations, re-establishing the validity of a class action waiver that had previously been invalidated by an arbitrator. As class actions from gig workers continue, Judge Barrett will likely play an important role.
- Kleber v. CareFusion Corporation (2019) - In a case of alleged age discrimination, Judge Barrett and the majority held that the protections of the Age Discrimination in Employment Act (ADEA) do not apply to job applicants. As candidates can experience discrimination for a multitude of reasons prior to being hired, this decision sets a precedent that would not be favorable to ensuring diversity and equal opportunity.
- Casillas v. Madison Avenue Associates, Inc. (2019) - This ruling dismissed a consumer's claim regarding predatory debt collection practices on the grounds that she could not prove injury. In this case, Judge Barrett authored the opinion, claiming "no harm, no foul" and calling the omission of information about dispute procedures a "mistake", although this type of disclosure is required under The Fair Debt Collection Practices Act. This ruling undoubtedly sets a precedent that will make it more difficult for consumers to bring successful class actions against abusive debt collectors.
- Gadelhak v. AT&T Services, Inc. (2020) - In another consumer protection case, Judge Barrett and the majority held that a system sending text messages to customers without consent does not qualify as an autodialer under the Telephone Consumer Protection Act. The ruling favored AT&T in this instance and potentially may inform the outcome of the Facebook v. Duguid case about unsolicited text messages, which will be heard in the Supreme Court this December.
- Wallace v. Grubhub Holdings, Inc. (2020) - This ruling affirmed that under the Federal Arbitration Act, food delivery drivers from Grubhub were subject to arbitration agreements and therefore unable to bring to court their class action claim of being misclassified as independent contractors rather than employees. Like her previous decision on arbitration, this ruling creates yet another challenge for collective justice.
Moreover, insofar as healthcare and reproductive rights are concerned, Judge Barrett has not been shy about expressing her views. A critic of Roe v. Wade, the landmark case that protects women's rights to choose, Barrett has also expressed concern over the Affordable Care Act. With both pieces of legislation being in President Trump's crosshairs, it should be no surprise that Barrett, if confirmed, will play a critical role in the future attempts to quash them. In an article published in 2017, Barrett criticized Justice Roberts for his decision in NFIB v. Sebelius (2012), stating that he "pushed the Affordable Care Act beyond its plausible meaning to save the statute." A decision to the contrary would have gutted the law, eliminating healthcare for millions of Americans.
As with Justice Thomas and her mentor, the late Justice Antonin Scalia, Judge Barrett's interpretation of the U.S. Constitution is originalist, which means it is based on the understanding of a text at the time that it was made law. Combined with her criticism of stare decisis, or the following of legal precedents, Barrett's textualist approach to interpreting the law may threaten past decisions, imperiling equal protection.
As I’ve written previously, the Roberts Supreme Court has already established itself as the most pro-business court in the history of the United States. Justice Ruth Bader Ginsberg stands to be the latest progressive civil rights hero to be replaced on the court with a conservative, pro-business justice who has a track record of restricting rather than expanding equal protection under the law. As a result, we can expect to see increasingly successful challenges to equal protection as well as continued expansion of pro-business rulings during her tenure.
Originally posted on LinkedIn Pulse: Is Amy Coney Barrett Really the Next Clarence Thomas (for Business)?
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.