June 28, 2013

David Cole is a professor of constitutional law and criminal justice at Georgetown University Law Center and a fellow at the Open Society Foundation.

The Supreme Court’s 5 to 4 decision to strike down a key part of the Defense of Marriage Act was undeniably historic, a victory not just for gay rights advocates but for anyone committed to advancing equal rights in America.

It was also an anomaly.

For all the celebration Wednesday — and who will forget the Gay Men’s Chorus of Washingtonsinging the national anthem outside the court? — the underlying theme of the Supreme Court’s term was not the recognition of rights, but their dilution. Time and again, in closely divided decisions on issues as disparate as antitrust law, privacy and discrimination, the court either watered down rights or made it difficult or impossible to enforce them effectively. (Unless, of course, you are a white college applicant challenging affirmative action.)

In two cases, the justices made it impossible for plaintiffs alleging serious violations of federal law even to have their claims heard. In Clapper v. Amnesty International, the court denied a constitutional challenge to the FISA Amendments Act of 2008, which vastly expanded the National Security Agency’s surveillance powers. This law authorizes the recently disclosed surveillance programs, which involve the interception of international e-mails, phone conversations and social-network communications. The act permits surveillance without having to show that the target is suspected of anything, thereby jettisoning the bedrock requirement of the Fourth Amendment. The plaintiffs in Clapper included lawyers, human rights advocates and journalists, all of whom communicated frequently with people overseas whom the government was likely to be targeting under the statute, and therefore had to take expensive and burdensome measures to preserve the confidentiality of their communications.

With a majority comprised of Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Anthony M. Kennedy, Antonin Scalia and Clarence Thomas, the Supreme Court ruled that the plaintiffs’ claims could not be heard because they could not show that they had actually been subjected to the surveillance. The catch: The surveillance is conducted in secret, so no one can be certain that he or she is subject to it.

In a second case, American Express Co. v. Italian Colors Restaurant , the same five justices ruled that corporations can insulate themselves from liability for violating federal law by inserting clauses in their contracts that prohibit class-action arbitration. A group of small merchants argued that American Express had violated antitrust laws by using its monopoly power to charge credit card fees 30 percent higher than those of its competitors. But American Express had used the same monopoly power to draft a form contract that directed all legal disputes into arbitration — and then forbade arbitration on a class-wide basis. The merchants argued that because antitrust claims are so expensive to prove, they are not worth pursuing on an individual basis and can be vindicated only through collective, class-wide proceedings.

The Supreme Court previously ruled that contracts may require arbitration rather than court litigation only if the arbitration proceeding provides an adequate forum for individuals to vindicate their rights. In Italian Colors, the court’s majority conceded that requiring individual arbitrations would make it too expensive to challenge American Express’s conduct, but, as Justice Elena Kagan paraphrased the majority’s response in her dissent: “Too darn bad.”

In three other closely divided decisions, the court’s conservative justices made equality rights decidedly harder to enforce. In Shelby County v. Holder, the court invalidated a key provision of the 1965 Voting Rights Act that required select states with a history of discrimination to clear any changes in their voting arrangements with the federal government ahead of time, by showing that the changes would not dilute the rights of minority voters. This preclearance requirement was the most effective part of the law because it prevented discriminatory actions from taking effect in the first place, rather than requiring victims to later sue in court, where challenges are often so expensive and time-consuming that they cannot adequately address many discriminatory voting practices.

The court previously upheld the preclearance requirement four times, but on Tuesday the conservative majority broke with years of precedent and concluded that the rights of states are more important than the equal voting rights of minority citizens.

In a pair of less-noticed decisions released the day before Shelby County, the court, once again by 5 to 4votes, issued employer-friendly, worker-hostile interpretations of Title VII, the section of the Civil Rights Act that prohibits discrimination in employment. In both cases, the court rejected long-standing interpretations of the law by the Equal Employment Opportunity Commission. In University of Texas Southwestern Medical Center v. Nassar, the court imposed a more demanding standard on “retaliation” claims, brought when an employer responds to a discrimination complaint by punishing the employee for raising the issue.

And in Vance v. Ball State University, the court narrowed the definition of “supervisors” under Title VII, thereby reducing employers’ responsibility for racial and sexual harassment in the workplace. Title VII says employers are more responsible for harassment from supervisors than from co-workers, and the EEOC had sensibly defined “supervisor” as a person with the authority to direct another’s daily work. But the court’s conservatives limited “supervisors” to those who have the formal authority to hire, fire, and grant or deny promotions, a much narrower group. The ruling means that victims of harassment by supervisors who lack such formal authority will be significantly less protected.

The justices also curtailed our rights against the police. In Maryland v. King, the court ruled that the state can take DNA samples from arrestees without a warrant or any basis for suspicion. It reasoned that DNA samples, like fingerprints, are taken for identification purposes, not to investigate a crime, and so don’t have to meet the “individualized suspicion” standard that applies to investigatory searches. But as Justice Scalia pointed out in a dissent joined by Justices Kagan, Sonia Sotomayor and Ruth Bader Ginsburg, DNA samples are not taken to identify arrestees but to investigate whether they are responsible for some other crime.

The practice of taking DNA samples, if strictly limited to identifying characteristics and not used to determine an individual’s genetic traits, may seem reasonable enough, as the intrusion is minor. But allowing sweeping searches without individualized suspicion runs contrary to the court’s long-standing Fourth Amendment rules.

Meanwhile, in Salinas v. Texas, the court’s conservative majority ruled, paradoxically, that Americans’ right to remain silent won’t be protected unless they speak up. The court decided that if someone refuses to answer potentially incriminating questions, it’s perfectly permissible for the state to use that refusal in a criminal trial, as long as the questions were asked outside the trial or an interrogation in custody. The result is that individuals who believe they have a right to remain silent (having been so informed by countless television shows) and exercise it will be punished for doing so.

Of course, the high court was not uniformly hostile to individual rights. In addition to striking down the Defense of Marriage Act’s limits on federal marriage benefits, it also gave a partial victory to Abigail Fisher, a white applicant who challenged the University of Texas’s affirmative action plan; in that case, the court compromised, concluding that the lower courts had not subjected the university’s plan to sufficient scrutiny, and sent the case back for further review. But of course that ruling, issued in the name of equal protection, actually limits efforts to remove barriers for minorities.

The larger pattern is clear: This term, the Roberts court regularly favored restricting people’s rights or, more insidiously, limiting their ability to enforce those rights.

Almost all these rulings were 5 to 4 decisions, most divided along familiar ideological lines. The close votes reflect the fact that there were reasonable arguments to be made on both sides. But courts play an essential role in safeguarding individual rights, and in this term, the Supreme Court repeatedly did the opposite. Congress could, of course, fix many of the problems through legislation — but leaving the protection of individual rights to a polarized and partisan institution offers cold comfort.

Read more from Outlook:

George Takei: A defeat for DOMA — and the end of ‘ick’

Five myths about same-sex marriage

David Cole: The conservative Constitution of the United States

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David Cole teaches constitutional law, national security, and criminal justice at Georgetown University Law Center. He is also the legal affairs correspondent for The Nation, and a regular contributor to the New York Review of Books.