A Changing Supreme Court: The Stakes for Seniors

Changes to the U.S. Supreme Court could leave Older Americans without the protections they have long relied on.

President Bush, announcing his July 19 nomination of John J. Roberts as Associate Justice of the Supreme Court, aptly said, “The decisions of the Supreme Court affect the life of every American.” Older Americans are no exception to this truth. They have much riding on the changes that Roberts, now nominated for Chief Justice, and a second nominee yet to be named, could bring to the law.

Most Americans know well the basic guarantees this nation has committed to assure for our seniors: equal opportunity on the job while they remain in the work-force; income security after they retire; and access to quality, affordable health care. For decades, seniors have taken these protections for granted. That assurance has been provided by laws like Social Security, the Age Discrimination in Employment Act, the Americans with Disabilities Act, Medicare, and Medicaid. Now, many seniors are aware that those laws have come under fire on Capitol Hill.

Less widely understood is the stealth threat from the courts. In fact, the forces now lobbying Congress to repeal entitlements in Social Security, Medicaid, and other long-standing federal statutes have a Plan B. That “other plan” targets the judiciary. Their hope for the 21^st century is that a new generation of activist federal judges will quietly, out of the public eye, strike down or undermine enforcement of the network of protections enacted through national dialogue during the 20^th century.

Before confirming the President’s nominees to life-tenured seats on the Supreme Court, the Senate needs to examine whether they will use that power to advance this activist and undemocratic agenda for the judiciary, an agenda frequently packaged as judicial philosophies such as “federalism,” “property rights,” “originalism,” or the “constitution-in-exile.”

Already, under the present Court, opinions have been written that disparage the legitimacy of vital senior protections, opinions which future judges could invoke as precedents to threaten the viability of those protections.

Consider these examples:

• In 1993, Florida State University reneged on an agreement to implement a market-based salary plan that would have particularly benefited senior faculty members and other employees. In response, Professor Daniel J. Kimel and a number of his colleagues sued, alleging that Florida State had violated the federal Age Discrimination in Employment Act (ADEA).

Professor Kimel's complaint typifies challenges that confront aging Americans. As workers become more seasoned and experienced, they – perversely – face more job risk and less security. Congress enacted the ADEA precisely to give older workers a shield against this pervasive work-place hazard.

But in January 2000 a narrow 5-4 Supreme Court majority threw Professor Kimel and his colleagues out of court. Kimel’s age discrimination claim was not important enough to subject the state of Florida to liability, even if it had violated the law. The reason, the five justices asserted, is that, "older persons, unlike those who suffer discrimination on the basis of race or gender, have not been subjected to a history of purposeful unequal treatment."

• In 2001 the same type of Alice-in-Wonderland logic was invoked by the same 5-4 majority to bar the courthouse door to Patricia Garrett. She had lost her Director of Nursing job at the University of Alabama in Birmingham Hospital after taking medical leave for breast cancer treatment. Once again, the justices ­dismissed disability-based discrimination as less sympathetic than race or sex discrimination. Few older Americans are immune from fear of the double whammy that hit Patricia Garrett — a temporary encounter with disability that then leads to long-term economic catastrophe.

In numerous other cases involving vital senior safeguards, the current Supreme Court has similarly been split down the middle. Roberts and the President’s second nominee will decisively affect future resolution of the issues at stake in these cases. For example:

• whether beneficiaries of entitlement programs such as Medicaid can enforce their federal rights to treatment in court —in many instances the only effective tool for ensuring that states spend federal funds in accordance with federal guarantees to patients;
• whether government social programs – such as nursing home safety standards – should be immobilized by courts, by requiring governments to compensate regulated facilities for the costs of complying with regulatory requirements;
• whether employers are immune from liability under the Age Discrimination in Employment Act unless plaintiffs can prove actual intent to discriminate on the basis of age—an interpretation that would render most age discrimination claims nearly impossible to prove;
• whether states are barred from guaranteeing independent medical review of HMO denials of coverage under health insurance plans.

In the latter case, a 5-4 decision in which retiring Justice Sandra Day O’Connor’s vote was necessary to preserve patients’ opportunity for independent review of HMO coverage denials, Roberts as a private lawyer argued the contrary view on behalf of an HMO client of his law firm. That fact does not demonstrate what his position would be as a judge. But it does underscore how great a difference could be made by his replacement of Justice O’Connor.

During 2003 hearings as a candidate for the District of Columbia Circuit Court of Appeals, Roberts criticized the “era of judicial activism” during the first third of the 20th century, when the Supreme Court aggressively struck down federal and state social reform laws. This time around, the stakes are far higher. Senators need to exact credible commitments that, once on the Supreme Court, President Bush’s nominees will match such implicit professions of respect for Congress’ social enactments, and satisfy themselves that they will honor those commitments.