The Pro-Corporation Roberts Court Strikes Again With Two Pro-Corporation 8-1 Opinions

January 10th, 2012

In CompuCredit Corp. v. Greenwood, the Court, on narrow 8-1 lines, held that because the Credit Repair Organization Act is silent on whether claims under the Act can proceed in an arbitrable forum, the Federal Arbitration Act (FAA) requires the arbitration agreement to be enforced according to its terms. Mandatory arbitration!

Justice Ginsburg dissents alone:

The Court today holds that credit repair organizations can escape suit by providing in their take-it-or-leave-it contracts that arbitration will serve as the parties’ sole  dispute-resolution mechanism. The “right to sue,” theCourt explains, merely connotes the vindication of legal rights, whether in court or before an arbitrator. That reading may be comprehensible to one trained to “think like a lawyer.” But Congress enacted the CROA withvulnerable consumers in mind—consumers likely to read the words “right to sue” to mean the right to litigate incourt, not the obligation to submit disputes to binding arbitration. In accord with the Ninth Circuit, I would hold that Congress, in an Act meant to curb deceptive practices, didnot authorize credit repair organizations to make a false or misleading disclosure—telling consumers of a right theydo not, in fact, possess. If the Act affords consumers a nonwaivable right to sue in court, as I believe it does, a credit repair organization cannot retract that right by making arbitration the consumer’s sole recourse.

So “think[ing] like a lawyer is bad.”

In Minneci v. Pollard, (analysis here) Justice Breyer for eight Justices declines to find a Bivens remedy for violation of Eighth Amendment by privately managed prison personnel.  Lousy pro-corporation Roberts Court, not finding for liability for corporations!

The question is whether we can imply the existence of an Eighth Amendment-based damages action (a Bivens action) against employees of a privately operated federal prison. See generally Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 389 (1971) (“[V]iolation of [theFourth Amendment] by a federal agent . . . gives rise to acause of action for damages” against a Federal Government employee). Because we believe that in the circumstances present here state tort law authorizes adequate alternative damages actions—actions that provide both significant deterrence and compensation—we cannot do so. See Wilkie v. Robbins, 551 U. S. 537, 550 (2007) (no Bivens action where “alternative, existing” processesprovide adequate protection).

Again RBG stands alone in dissent:

Were Pollard incarcerated in a federal- or state-operatedfacility, he would have a federal remedy for the Eighth Amendment violations he alleges. See Carlson v. Green, 446 U. S. 14 (1980) (Bivens action); Estelle v. Gamble, 429
U. S. 97 (1976) (42 U. S. C. §1983 action). For the reasons stated in the dissenting opinion I joined in Correctional Services Corp. v. Malesko, 534 U. S. 61, 75–83 (2001) (opinion of Stevens, J.), I would not deny the same character of relief to Pollard, a prisoner placed by federal contract in a privately operated prison. Pollard may havesuffered “aggravated instances” of conduct state tort law forbids, ante, at 9 (opinion of the Court), but that sameaggravated conduct, when it is engaged in by official actors,* also offends the Federal Constitution, see Estelle, 429 U. S., at 105–106. Rather than remitting Pollard to the “vagaries” of state tort law, Carlson, 446 U. S., at 23, I would hold his injuries, sustained while serving a federal sentence, “compensable according to uniform rules of federal law,” Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 409 (1971) (Harlan, J., concurring in judgment).

These aren’t 5-4 opinions.