…the most consequential work of the Roberts Court in protecting corporate rights has been in cases that have gone mostly unnoticed, including a pair (A.T. & T. v. Concepcion and American Express v. Italian Colors) in which Scalia wrote the majority opinion. In these cases, both of which turned on an interpretation of a once obscure 1925 law, the Court ruled that companies could require customers to give up their right to sue in open court, with disputes to be settled by a private arbitrator instead. “These cases don’t get people’s attention the way things like abortion and same-sex marriage do,” Miller said. But, if the decisions stand, Fitzpatrick argues, “they have the potential to literally wipe out the class-action lawsuit.”
That might not sound like a bad thing—we’re always hearing that Americans are too litigious—but, in an era when regulators are routinely falling down on the job, lawsuits play a crucial role in deterring corporate misbehavior. Miller calls them a “private enforcement of public policies.” And when it comes to big corporations class-action suits are often the only kind that make any economic sense. If every individual defrauded by a company loses fifty dollars, the collective harm can be immense, but it’s not worthwhile for any single victim or lawyer to bother. Fitzpatrick says that obstacles to filing class-action lawsuits make it more likely that “companies will not be held accountable for hurting people, for cheating people, for defrauding people, for discriminating against people.” In that sense, the battle over access to the courtroom is, as Miller puts it, “a kind of class conflict between ordinary individuals and corporate power.” And in that conflict there’s no question which side Scalia was on.
James Surowiecki, “Courting Business”, The New Yorker (7 March 2016), 21.