“From The Roberts Fab Five”: With No Accountability Or Liability, Generic Drug Companies Get Even More Immunity
Monday’s U.S. Supreme Court ruling immunizing drug companies from lawsuit for egregious injuries wasn’t terribly surprising for those who have been following along. Two years ago, in a case called PLIVA v. Mensing, the U.S. Supreme Court held that generic drug companies were largely immune from lawsuits alleging their failure to warn of harmful consequences. On Monday, in a 5-4 ruling along ideological lines, the court extended this holding to apply to other types of claims against generic drug manufacturers, and held that a federal statute precluded suit by a woman who incurred burns on 60 percent of her body and was rendered legally blind by an alleged drug defect.
This ruling was a predictable addition to the line of cases immunizing big business from liability, but it was not an inevitable follow-up to PLIVA. In conjunction with two other rulings Monday that stomped on workplace protections for minorities and women, this decision brings the top corporate lobby’s win rate before the U.S. Supreme Court term to 13-3. With one case remaining in which the Chamber of Commerce weighed in, it is clear that however that final case is decided, big business won very big at the expense of the little guy.
As has been a frequent practice by the Roberts Court, the five-justice majority found that federal law trumped state law protecting patients, over protestations from the four dissenting justices that both federal and state law could co-exist. Interpreting a federal law requirement that generic drug companies simply follow the warnings and design of the brand name drug, the court held that generic companies cannot be held liable for its flaws. This means that a generic company that distributes a dangerous product has no obligation to simply stop selling that drug, and can go on dispensing the potentially dangerous substance with immunity. As Justice Sonia Sotomayor wrote in dissent, the court justified its holding through “an implicit and undefended assumption that federal law gives pharmaceutical companies a right to sell a federally approved drug free from common-law liability.”
The majority holding in this case overturned a $21 million verdict — upheld by the appeals court — for the plaintiff’s alleged injuries. Now, the company owes nothing. With 80 percent of U.S. prescriptions filled by generics, this ruling not only wipes away generic manufacturers’ responsibility to halt the sale of dangerous products; it also impacts safety for the great majority of consumers.
According to a Public Citizen report released Monday, much of the safety information about a drug emerges after FDA approval, once the drug enters the market. And it is often not the case that the FDA revisits approval. As Justice Stephen Breyer explains in his dissent, it is “far more common for a manufacturer to stop selling its product voluntarily after the FDA advises the manufacturer that the drug is unsafe and that its risk-benefit profile cannot be adequately addressed through labeling changes or other measures” than for the FDA to formally withdraw approval based on new information.
In the wake of the PLIVA decision, members of Congress had asked FDA to revise its regulations in ways that will now be doubly essential to consumer safety. In the absence of clarity from Congress or the FDA, today’s decision paves the way for a whole lot of malfeasance.
By: Nicole Flatow, Think Progress, June 24, 2013
“Protection Of Minority Voting Rights Is A Thing Of The Past”: SCOTUS Voting Rights Decision Hurls Nation Back To Its Tragic Past
In a 5-4 decision along the ideological lines one might expect, the Supreme Court today cut out the heart and soul of the Voting Rights Act of 1965.
While preserving the purpose and the intent of the momentous civil rights law—as set forth in Section 2 of the Voting Rights Act (“VRA”) which proclaims that no American can be denied the right to vote based on their race or gender—the Court struck down the sole method of enforcing the intent of the law. They accomplished this by declaring Section 4 of the Act, which sets forth the formula for determining which state and local governments must seek federal approval of any and all changes to their voting laws before placing the same into effect, to be unconstitutional.
Writing for the majority, Chief Justice Roberts stated,
“In 1965, the states could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics,” Chief Justice John G. Roberts Jr. wrote for the majority. “Congress based its coverage formula on that distinction. Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”
In other words, it is the opinion of the Court’s majority that the enforcement provisions of the Voting Rights Act worked so well that to continue enforcement under the existing scheme is unconstitutional.
The logic of the majority represents a tragic irony given that the ruling comes at a time when minority voting rights are, once again, under severe attack as state governments under GOP control seek to rig the game in an effort to overcome the demographic and racial shifts in the electorate. These changes dramatically improve the opportunities for Democrats to gain elected office—particularly when it comes to the presidency.
Indeed, it was the Voting Rights Act that was at the heart of successful efforts to stop states attempting to cut back on early voting hours and instituting voter identification laws that would have dramatically affected minority voter turnout during the 2012 election. Now, the opportunity to rely on the law to stop future efforts to curtail minority voting will have vanished in a 5-4 decision.
Not all that many years ago, I might have seen the logic in the majority’s opinion.
A review of registration and voting data in the state and local governments that have been—up until today—required to gain federal approval of their voting and registration laws before placing them into effect, revealed that major steps forward had taken place as a result of the 1965 law. Still, Congress saw fit to continue the formula set forth in Section 4 of the VRA when they renewed the law in 2006 without making changes to which states and local governments are affected—a Congressional decision that rests at the very heart of the Supreme Court majority’s displeasure.
The Court had previously warned Congress of what might come if they failed to make adjustments to the law based on recognizing the advancements made in states still subject to federal oversight. In 2009, the Supreme Court considered the constitutionality of the 2006 extension of the Voting Rights Act in Northwest Austin Municipal Utility District Number One v. Holder. In that case, the Court avoiding ruling on the central issue—the constitutionality of all or part of the VRA. However, the majority went out of their way to highlight their concern that Congress was relying on old data collected in 1974 when calculating which state and local governments would continue to be subject to federal approval of local voter laws.
Congress never got around to reviewing the law, based on the Supreme Court’s admonition, leading to today’s regressive decision.
At the time of the Municipal Utility decision, I saw some value in the Court’s approach. While it remained—and remains—essential that the VRA continue in full force and effect to protect the voting rights of all Americans, it made sense that data constantly be reviewed by Congress so as to grant more sovereign authority to states and local governments who may now adequately protect voting rights. But it remains equally as important that the federal government hold onto the opportunity to clamp down on these governmental units should they return to old habits.
But then came the efforts over the past few election cycles to suppress the vote of minorities in various states throughout the nation. In each instance, the drive to limit access to the polls came in states where the government was fully under the control of Republicans looking to improve the chances of electoral victory in the 2012 presidential election.
We all recall what happened in states like Florida, Pennsylvania and Ohio where difficult and unreasonable voter ID laws, or dramatically shortened early voting hours and other voting opportunities were suddenly legislated into existence.
The State of Texas—a state subject to the requirements of Section 4 of the Voting Rights Act—has now produced the most restrictive voter ID law in the country but has been unable to implement the law as the Feds have yet to approve it. The same is the case in Virginia where an onerous voter ID law has been signed by the Governor but held up pending federal approval as they too are subject to the enforcement provisions of the VRA.
Federal protections of minorities in these states are now a thing of the past. Indeed, the state of Texas has already announced that, based on today’s Supreme Court ruling, they no longer have to wait for federal approval of their voter ID law and that the law will go into effect immediately.
Seeing this happen makes it all too clear that many of these states have not changed their ways since the day President Lyndon Johnson signed the Voting Rights Act into law and that the only thing that has protected minorities in these states during the years following 1965 has been the very part of the Voting Rights Act that has now been invalidated.
The Supreme Court got it wrong. By not recognizing that the success of the Voting Rights Act enforcement provisions was based on the existence of the enforcement provisions, the Court has condemned the nation to relive some of the worst days and inequities in our history.
While today’s decision does leave the door open for Congress to take on the issue and re-craft Section 4 with an eye to current data, does anyone actually believe that this will happen with the GOP in control of the House of Representatives?
Not likely—or at least not likely until we have a federal government fully back in the hands of the Democratic Party.
For anyone out there who believes that midterm elections are not particularly exciting or worth your time, the stakes of the 2014 midterms just increased dramatically. The nation took a giant step backwards today—a misstep that can only be corrected by the return of the House of Representatives to Democratic control and retaining the Democratic majority in the Senate. As a result, while today’s Supreme Court decision makes this a very sad day in the advancement of the nation, it may be just the kick in the pants Americans require to get out of the house and down to the voting booth in November, 2014.
Let’s hope so.
A lot of Americans suffered a great deal—some making the ultimate sacrifice—to make the Voting Rights Act of 1965 a reality.
We should not let them down now.
By: Rick Ungar, Op-Ed Contributor, Forbes, June 25, 2013
“Sotomayor, Kagan Ready For Battles”: You May Have The Votes Conservatives, But You’re Going To Have A Fight
For a quarter-century, Antonin Scalia has been the reigning bully of the Supreme Court, but finally a couple of justices are willing to face him down.
As it happens, the two manning up to take on Nino the Terrible are women: the court’s newest members, Sonia Sotomayor and Elena Kagan.
The acerbic Scalia, the court’s longest-serving justice, got his latest comeuppance Wednesday morning, as he tried to make the absurd argument that Congress’s renewal of the Voting Rights Act in 2006 by votes of 98 to 0 in the Senate and 390 to 33 in the House did not mean that Congress actually supported the act. Scalia, assuming powers of clairvoyance, argued that the lawmakers were secretly afraid to vote against this “perpetuation of racial entitlement.”
Kagan wasn’t about to let him get away with that. In a breach of decorum, she interrupted his questioning of counsel to argue with him directly. “Well, that sounds like a good argument to me, Justice Scalia,” she said. “It was clear to 98 senators, including every senator from a covered state, who decided that there was a continuing need for this piece of legislation.”
Scalia replied to Kagan, “Or decided that perhaps they’d better not vote against it, that there’s nothing, that there’s no — none of their interests in voting against it.”
Justice Stephen Breyer defused the tension. “I don’t know what they’re thinking exactly,” he said, changing the subject.
The styles of the two Obama appointees are different. Sotomayor is blunt and caustic, repeatedly interrupting. In an opinion this week, she harshly criticized a Texas prosecutor for a racist line of questioning. She has been on the interview circuit publicizing her memoir.
Kagan is choosier about when to interject herself, but she’s sardonic and sharp-witted. (“Well, that’s a big, new power that you are giving us,” she said, mockingly, when a lawyer tried to argue that the justices should overrule Congress’s discrimination findings.)
Both are more forceful than the Clinton appointees, the amiable Breyer and the frail Ruth Bader Ginsburg. The two new justices are sending a message to the court’s conservative majority: You may have the votes, but you’re going to have a fight.
Wednesday’s voting rights case was typical. Surprisingly, the five conservative justices seemed willing to strike down a landmark civil rights law (the provision that gives extra scrutiny to states with past discrimination) that was renewed with near-unanimous votes in Congress. Conservative jurists usually claim deference to the elected branches, but in this case they look an awful lot like activist judges legislating from the bench.
Sotomayor allowed the lawyer for the Alabama county seeking to overturn the law to get just four sentences into his argument before interrupting him. “Assuming I accept your premise — and there’s some question about that — that some portions of the South have changed, your county pretty much hasn’t,” she charged. “Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?”
Moments later, Kagan pointed out that “Alabama has no black statewide elected officials” and has one of the worst records of voting rights violations.
Scalia and Justice Samuel Alito tried to assist the Alabama county’s lawyer by offering some friendly hypotheticals, but Sotomayor wasn’t interested in hearing that. “The problem with those hypotheticals is obvious,” she said, because “it’s a real record as to what Alabama has done to earn its place on the list.”
Sotomayor continued questioning as if she were the only jurist in the room. “Discrimination is discrimination,” she informed him, “and what Congress said is it continues.”
At one point, Justice Anthony Kennedy tried to quiet her. “I would like to hear the answer to the question,” he said. The lawyer got out a few more sentences — and then Kagan broke in.
Sotomayor continued to pipe up, even when Solicitor General Donald Verrilli was defending the Voting Rights Act — at one point breaking in as Alito was attempting to speak. Chief Justice John Roberts overruled her. “Justice Alito,” he directed.
Scalia was not about to surrender his title of worst-behaved justice. He mocked the civil rights law as he questioned the government lawyer. “Even the name of it is wonderful,” he said. “The Voting Rights Act: Who is going to vote against that?” (Verrilli cautioned him not to ignore actual votes of Congress in favor of “motive analysis.”)
But Scalia’s mouth was no longer the loudest in the room. When the Alabama county’s lawyer returned for his rebuttal, he managed to utter only five words — “Thank you, Mr. Chief Justice” — before Sotomayor broke in.
By: Dana Milbank, Opinion Writer, The Washington Post, February 27, 2013
“Disenfranchisement Persists”: The Supreme Court Must Defend The Voting Rights Act
Today, the Supreme Court will hear oral arguments on Shelby County v. Holder, a case concerning the constitutionality of key provisions of the Voting Rights Act of 1965, a landmark law that outlawed discriminatory voting practices that disenfranchised African-Americans.
Shelby Country lies just south of Birmingham, Ala. One of its largest tourist attractions is the American Village, a nationally recognized citizenship education center whose mission is to teach visitors good citizenship and remind them of the price of liberty—that freedom isn’t free.
Shelby County wants the Supreme Court to declare a part of Section 4 and Section 5 of the Voting Rights Act unconstitutional. Section 4b codifies a formula to identify parts of the country where political discrimination based on race is high. Section 5 requires the Justice Department to “preclear” any changes to voting rules made in nine states, mostly in the South, and by areas in seven others.
The justices will consider an ultimate constitutional question: Does voter discrimination persist to the point where legal protections must remain in place to prevent it? The question, of course is rhetorical. It does. We only need to look at the long list of recent state-level legislative activity, both in and out of the South, that targets minority voters. Just in the last decade, lawmakers have broken up majority-minority districts with questionable redistricting practices. African-American and Latino voters have seen their names purged from voter lists under the guise that election officials were cleaning them up, and restrictive voter ID laws implemented. Laws, some argue, are the modern day equivalent of poll taxes.
If today was the opposite day, Shelby County’s case would have merit. They’d rightly argue that voting rights are color-blind. But it isn’t the opposite day, nor will that be the case for a long time to come. Shelby County ignores this fact. It forgets about Alabama’s long history of using violence fraud, poll taxes, and literacy tests to keep African-American’s from the polls.
The justices must avoid the same amnesia. In 2006, the House of Representatives voted 390-to-33 and the Senate 98-to-zero to renew the Voting Rights Act until 2031. These lawmakers, after a significant amount of testimony and impassioned debate, recognized that the threat of disenfranchisement persists. Some of the justices, however, have already signaled that it doesn’t. Justice Anthony Kennedy has questioned the fairness of the Voting Rights Act, and Justice Clarence Thomas has said flat out said that it’s unconstitutional.
Shelby County v. Holder targets the very heart of American democracy. If the justices rule in Shelby County’s favor, the right to vote will most certainly not be free. The American Village will have one more reminder to give its visitors.
By: Jamie Chandler, U. S. News and World Report, February 27, 2013
“The Influence Of Money”: The Road To Total Political Domination By The Wealthy
The United States Supreme Court on Tuesday agreed to hear the case that opens the door to the final destruction of the campaign finance laws that place a limit on how much money an individual can contribute directly to a federal candidate or national political party.
Now that the infamous Citizens United case, decided in 2010, has removed limits on how much a corporation, union and individual can contribute to groups that are ‘unaffiliated’ with candidates and political parties—leading to the creation and domination of the Super PAC—the Court, by agreeing to hear yet another challenge to campaign finance laws, is poised to take the next step toward finishing off all campaign limits by freeing individuals to give candidates and their political parties unlimited sums of money.
As the law currently stands for calendar years 2013-14, individual donors are limited to giving contributions to candidates for federal offices up to a maximum of $123,200 during an election cycle (two years) with a limit of $2,600 to an individual candidate, $32,400 to a national political party, $10,000 to a state political party and $5,000 to any other political committee affiliated with a candidate or political party.
However, an Alabama political donor—joined by the Republican National Committee—believes that the limitation of $123,200 placed on an individual donor during an election cycle is ‘unconstitutionally low’ and wants the highest court in the land to remove the cap.
The case now set to come before the Supreme Court will challenge only the total contribution cap and does not go after the limits placed on money given to individual candidates and political parties. However, based on the Court’s ruling in Citizens United, it is widely anticipated that were the Supreme Court to side with the plaintiffs in this matter and end the limits on the total contribution amount, the Court will have telegraphed its intention to do away with limitations of any kind or nature—making it only a matter of time until limits on individual contributions to candidates and political parties are also tossed into the dustbin of history.
While ending the existing limitation would put political parties on an even keel with the Super PACs in the race for big money, it would also mean the latest evisceration of the campaign finance limits put in place during the 1970’s when Congress reacted to the growing influence of money in politics—money that placed wealthy, individual donors in a position of undue influence over the nation’s elected officials.
The case that will now be heard by SCOTUS was argued last year in the United States Court of Appeals for the District of Columbia Circuit where a three judge panel ruled that the challenged campaign limit laws were, indeed, constitutional. In issuing the Circuit Court ruling, Judge Janice Rogers Brown noted that the Supreme Court had previously held that limiting an individual’s political contributions had only a marginal effect on that person’s freedom of speech and that it was within Congress’ authority to place such limits on individual contributions.
Judge Brown added, “Although we acknowledge the constitutional line between political speech and political contributions grows increasingly difficult to discern, we decline plaintiffs’ invitation to anticipate the Supreme Court’s agenda.”
The Supreme Court has now accepted that invitation, leading many experts to worry that the latest blow to campaign finance laws in about to descend.
By: Rick Ungar, Op-Ed Contributor, Forbes, February 20, 2013
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