July 26, 2018

Whitehouse Files SCOTUS Brief Defending Americans’ Right to Their Day in Court

Senator warns of growing threat to judicial legitimacy from corporate special interest campaign to deny Americans access to the courts


Washington, DC – Senator Sheldon Whitehouse (D-RI) – a member of the Senate Judiciary Committee, and a former Rhode Island Attorney General and U.S. Attorney – has filed a friend-of-the-court brief with the Supreme Court in New Prime, Inc. v. Dominic Oliveira arguing in favor of Americans’ right to settle disputes in court.  In his brief, Whitehouse details the far-reaching campaign by corporate special interests to erode access to civil court proceedings in favor of forced arbitration included by companies in many contracts.  Mandatory arbitration proceedings allow corporations to avoid facing opponents on an even footing in court, instead forcing them plead their case before arbitrators of their choosing under terms they themselves set.  Ruling for corporations in this case, Whitehouse argues, would be another blow to the integrity of the Court after a string of 5-4 decisions that with “numbingly predictable inevitability” side with Republican partisan and corporate special interests over those of everyday Americans.

Over the past decade, a predictable conservative majority of the Supreme Court has handed down an accommodating string of 5-4 decisions closing off ordinary citizens’ pathways to the courtroom,” Whitehouse writes. “Corporate victories at the Supreme Court have undermined civil litigants’ constitutional right to have their claims heard before a jury of their peers, and have whittled to a nub the protective role courts and the jury system were designed to play in our society.  Such victories have allowed corporations to steer plaintiffs out of courtrooms and into arbitration, where the odds can be stacked in favor of big business.”

Denying Americans access to a civil jury denies them fundamental constitutional prerogatives, Whitehouse observes.  “The Founders had more in mind for this institution of government when they protected the civil jury in our Constitution’s Bill of Rights.  Alexis de Tocqueville observed that the jury should be understood as ‘one mode of popular sovereignty.’ Jury service gives citizens direct exercise of an American constitutional power,” he writes.

New Prime centers on a challenge by a truck driver against a trucking company that sought to force him into arbitration proceedings under the Federal Arbitration Act.  The company argues the driver is compelled to enter arbitration under the terms of his contract and the FAA, while the driver contends the law expressly exempts truck drivers and other “workers engaged in foreign or interstate commerce” from giving up their recourse to a civil proceeding.

The Supreme Court is gathering briefs in New Prime now.  A hearing in the case has not been scheduled. 

Read Whitehouse’s full brief here.



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