Remarks Of Chairman Patrick Leahy

To The American Constitution Society

Friday, June 13, 2008

 

It is a pleasure to address the American Constitution Society.  I come before you at a time when our Nation is focusing its attention on two presidential nominees and the different paths their presidencies would take our country.  In my time with you today,   I would like to focus on the impact presidential appointments to our courts have on all Americans.  Some of the Supreme Court’s recent decisions dramatically underscore why the selection of judges to our Federal courts impacts the daily lives of real people – even in matters of life and death.  The American people need to be able to trust that their courts will uphold their rights and will not play favorites.

 

As lawyers and leaders, we all need to do a better job of translating the Court’s legal theories and technical, procedural rulings into real life consequences.  The time to energize and educate the public about the impact of the Court on their lives is not after the next election and after the new President has nominated a new Justice – it is now.

 

I recognize that the Supreme Court’s rulings tend to receive national notice when they involve divisive cultural issues.  Lately, however, many of us have noticed that business interests have been the big winners, often at the expense of ordinary Americans.  In this worsening economy, mothers and fathers are struggling with health care coverage, the uncertainty of retirement, credit card payments and mortgages. Congress has passed laws to protect Americans in these areas, but in case after case, the Supreme Court has ignored the intent of Congress in passing these measures, oftentimes turning these laws on their heads, and making them protections for corporate defendants.

The best known recent example is the case of Lilly Ledbetter, who worked for more than two decades as the sole female supervisor in a major, national corporation.  Shortly before retirement, Ms. Ledbetter received an anonymous note showing the salaries of her male counterparts. Even the lowest paid male supervisor was earning 20 percent more than she was for the same job, despite having far less experience and seniority than she did. Turns out, she had also been shortchanged on bonuses, retirement benefits, and overtime pay. Ms. Ledbetter proved to a jury that she had been illegally discriminated against. But the Supreme Court stepped in to reverse the verdict, creating a bizarre interpretation of the law. Her employer will now never be held accountable for its illegal actions.  In addition, the ruling tells other corporations that they can discriminate with impunity, so long as they keep their illegal actions hidden long enough.

Two days ago, I called a Judiciary Committee hearing to shine a light on several decisions in which the Supreme Court has overridden congressional intent and misconstrued laws designed to protect ordinary Americans.  We heard from two brave women, Bridget Robb and Maureen Kurtek.  Both are denied justice for the grievous harms they have suffered.  Ms. Robb almost died and suffered great pain as her implanted medical device malfunctioned and almost shocked her to death in front of her 6-year-old daughter.  Ms. Kurtek suffered amputations and multiple organ failure when her HMO would not approve timely treatment.  There are thousands more like them who are being adversely affected by rulings that slam the courthouse door shut and have the effect of encouraging corporate misconduct.

Years ago Congress passed a landmark law known as ERISA to ensure that workers with employer-sponsored health insurance or retirement benefits could count on them. But the Court has so distorted this law that it provides no relief for individuals when the companies entrusted with administering their benefit plans violate the law or the terms of the plans. Moreover, the Court has held, wrongly I believe, that it was the intent of Congress to take away pre-existing State law remedies for workers. The result: Congress’ monumental effort to safeguard workers and their families has literally left them more vulnerable than they were before the law was passed.

From the late Justice White to Justice Ginsburg, this misinterpretation of the law has been decried as preposterous, unjust, and incompatible with Congress’ true intent.  As one judge observed, the Supreme Court’s interpretation of the law has turned ERISA “into a shield that insulates HMOs from liability for even the most egregious acts of dereliction…directly contrary to the intent of Congress.”

The Supreme Court has narrowly interpreted another law designed to protect the thousands of Americans who rely on medical devices like Ms. Robb. Here again, the Supreme Court’s interpretation has transformed a law intended to do something good into one that takes away protections from people and encourages corporate misconduct.  The Court has again decided to extinguish long-standing State law remedies that hold corporations accountable when they are aware of potential dangers but hide them from consumers.

Then there are the laws governing lending institutions used by Americans to finance their homes, and credit cards used for everyday purchases. In this context as well, the Court has interpreted Federal legislation in a way that strips consumers of the right to benefit from more protective State laws. These decisions also serve to shield corporations from their misconduct. 

These Supreme Court rulings have occurred with little public attention, but have had a tremendous impact on the lives of many Americans. We all must begin to focus on this important legal doctrine of preemption which is increasingly being used as both a sword and a shield. 

 

The Supreme Court has traditionally considered there to be a presumption against a Federal law preempting all State law– and for good reason.  First, our government is structured on important principles of Federalism, which respects the rights of States to govern.  Furthermore, our States have traditionally played the primary role in protecting citizens’ health, safety and welfare.  That is why Federal regulations are viewed generally as setting a floor for conduct, but States are allowed to be more protective of their residents. 

 

The touchstone of preemption analysis is the intent of Congress.  One would not expect sudden assertions of wholesale preemption decades after Congress has passed a law. Yet, with an aggressive administration playing to its allies on the Supreme Court, that is exactly what we are seeing.

 

There is an important preemption case on the Court’s docket in October involving a children’s musician from Vermont named Diana Levine.  Eight years ago, Diana went to a hospital for treatment of a migraine.  She was injected with a drug used to treat nausea.  Because of the way the drug was administered, it entered the arteries in her arm causing an infection that later required amputation.  Wyeth, the drug’s manufacturer, was well aware at the time that arterial contact with their product could cause severe injury.  Diana sued Wyeth and a jury of her peers awarded her $6.7 million.  The Vermont Supreme Court upheld this determination holding that her claims were not preempted by Federal law and FDA regulations.   

Not surprisingly, the Bush administration urged the Supreme Court to grant review in Diana’s case and reverse.  One of its primary arguments is based on a radical departure taken by the FDA two years ago.  For decades, the FDA had consistently recognized that its labeling rules created minimum requirements and that State common law claims coexisted with Federal regulation of drugs.  This understanding spanned both Democratic and Republican administrations.  The Bush FDA, however, has radically departed from well-settled administrative and judicial views on the issue.

For more than 70 years, Congress legislated in the area of food and drugs knowing that Federal law does not preempt State failure-to-warn claims for FDA-approved drugs.  It has long been understood that State tort law complements Federal regulation by both compensating those injured by misconduct but also deterring future harm. 

The FDA’s assertion that its regulations suddenly preempt all State common law actions is a blatant power grab.  In a case where congressional intent should be the operative issue to determine preemption, it is unclear whether the Court will defer to Congress and not to the Bush FDA’s recent, unprecedented actions.  What is not in doubt is that the Supreme Court’s decision in Diana’s case will have a lasting impact on the millions of Americans who use pharmaceutical drugs.   

I would be remiss if I concluded without mentioning another important Supreme Court decision which will have a powerful effect on the rights of us all.  Yesterday, the Supreme Court did the right thing when it handed down the Boumediene v. Bush decision and upheld the Constitution and the Great Writ.  Justice Kennedy wrote for a slim 5-4 majority upholding habeas corpus review of our Government’s actions in holding individuals in detention. 

 

In three separate decisions, a narrow majority of the Supreme Court has recently rejected this administration’s erosion of fundamental rights and excessive assertion of executive power.  These rights and the system of checks and balances are what set us apart from those who wish to harm us.  The administration has sought, with a complicit Congress, to roll back essential rights.  Yesterday’s decision is a stinging rebuke of the Bush administration’s flawed detention policies, and a vindication for those of us who have fought from the beginning to maintain what is best about us and preserve our liberties.   

 

A majority of the Court held unconstitutional provisions in the 2006 Military Commissions Act designed to strip away all habeas rights from non-citizen detainees.  The Court ruled that the constitutional right to habeas corpus extends to Guantanamo Bay, Cuba.  The Court further held that the administration’s detention procedures are constitutionally inadequate, and that those detainees who have been determined to be “unlawful enemy combatants” are entitled to seek habeas review in Federal court. 

 

The Court’s decision validates what I have always maintained: Congress made a grave error when it voted to strip habeas corpus rights and left in place hopelessly flawed procedures to hold detainees indefinitely with no meaningful court review merely by the Executive’s decree.

 

Justice Kennedy, writing for the majority, recognized that the writ of habeas corpus is not a special benefit that is to be honored only when it is convenient.  Rather, it is a core constitutional value that has served for centuries to protect individuals against unlawful exercises of government power.

 

We must protect our national security, but security will not come at the expense of our freedoms.  As the Supreme Court reminded us yesterday: “Security subsists, too, in fidelity to freedom’s first principles.  Chief among these is freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to separation of powers.”

 

I thank you for inviting me to be with you today.

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