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.