Will Congress Rebuff the Supreme Court's Anti-Consumer Activism?

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from The American Prospect:




Will Congress Rebuff the Supreme Court's Anti-Consumer Activism?

The Court's campaign against individual court enforcement of consumer, employee, retiree, and other statutory protections has been a secret hiding in plain sight for the last four decades. Congress is finally taking notice.

Simon Lazarus | July 23, 2008 | web only



The fractious finish of the Supreme Court's 2007-2008 term, coupled with new rumblings on Capitol Hill and the prospect of expanded Democratic gains in November, suggest that we could be at the brink of an epochal clash between the Court and the elective branches of government.

Today, Senate Judiciary Committee Chair Patrick Leahy will hold the second in a planned series of hearings designed, as he stated in opening the first hearing, on June 11, "to shine a light on how the Supreme Court's decisions affect Americans' everyday lives." Noting that, especially in today's distressed economy, citizens are preoccupied with health care coverage, retirement uncertainty, and credit card, home mortgage, and other monthly payments, Leahy observed, "Congress has passed laws to protect Americans in these areas, but in many cases, the Supreme Court has ignored the intent of Congress."

The Court's campaign against individual court enforcement of consumer, employee, retiree, and other statutory protections has been a secret hiding in plain sight for the last four decades. During that period, in which Republican presidents selected 12 Supreme Court justices and Democrats managed only two, business community advocates have repeatedly asked the Court to water down or neutralize laws enacted by progressive congressional majorities. More and more, conservative Supreme Court majorities have done just that, "Oftentimes," as Leahy said, "turning these laws on their heads, and making them protections for big business rather than ordinary citizens." In the last two Supreme Court terms, the National Chamber of Commerce participated in 29 cases (nearly one third of the 97 civil cases the Court decided in that period) and won 20 of them.

The case of Maureen Kurtek, who testified before the Judiciary Committee on June 11, illustrates the senator's point. Ms. Kurtek is a 44 year old wife, mother, and former nurse who suffers from lupus, a chronic disease that attacks the immune system. Beginning in 1998, her lupus had been held at bay by three biannual treatments prescribed by her physician; each of the three $14,000 treatments was fully paid for by the insurer handling the employee benefit plan of her husband's employer. But in late 2002 her husband changed jobs, and the new employer's benefit provider, Capitol Blue Cross, balked. The insurer stonewalled her urgent requests to authorize a fourth treatment, insisting that the company was "investigating," though never once contacting her physician who had prescribed the treatment. After nearly three months, deterioration of Ms. Kurtek's immune system triggered septic shock and multiple organ failure, forcing her into emergency hospitalization. She barely survived, but not before she had suffered irreversible, gruesome injury. "I stand before you," she told the Committee, "with a tracheotomy scar on my neck, five amputated finger tips, and an amputated right foot where I still experience phantom pains."

The Kurtek family went to court, but the U.S. Court of Appeals for the Third Circuit in Pennsylvania rejected her suit. Reluctantly, the Third Circuit ruled that the Supreme Court's b unjust and tangledb interpretation of the 1974 federal Employee Retirement Income Security Act (ERISA) (in 1993 and 2002 decisions authored by Justice Antonin Scalia) barred any monetary compensatory relief, and, further (in a 2004 decision by Justice Clarence Thomas) that ERISA "preempted" (i.e., invalidated) claims for compensation under state negligence and trust law. ......(more)

The complete piece is at: http://www.prospect.org/cs/articles?article=will_congress_rebuff_the_supreme_courts_anti_consumer_activism