Sunday, February 09, 2014

The Conservative Revolution: The Courts

When Bush stole the 2000 election, many pundits had been arguing for months that there was little difference between he and Gore. Famously, Ralph Nader was among those making this claim. A couple of years later – after the Iraq War, major tax cuts and a host of pro-corporation, anti-environment and anti-worker decisions – they must have all regretted that rather absurd argument. Sure, Clinton and Gore might have led the truest conservative administration in recent history, getting tougher on crime, balancing the budget, cutting welfare, shrinking the size of government, cutting corporate taxes and regulation, ending Glass-Stiegel and allowing major media consolidation. But Bush’s mixed conservatism seemed to embody the worst of both worlds. And near the top of the long-term damage to the country, beyond the direct economic troubles he left in his wake and the further consolidation of income and wealth at the top of the ladder, was the opportunity to put two conservative ideologues on the Supreme Court who cloaked themselves as moderates.

Obama has been able to replace one Justice during his presidency, but he has not been able to stop the hard right turn this court has taken under Roberts – to a pro-corporate, anti-labor, anti-democracy bias that is turning back the clock several decades (the court is the most pro-business since WWII and Roberts and Alito, together with the other 3 conservative judges, are all in the top 10 for pro-business in the past 76 years). Beyond this, Obama's nominees for the federal courts leave a lot to be desired, with a mere 4% coming from the public interest world while the majority (85%) arrive after working in the corporate world. This can't help but influence the decisions made by these judges, who have been making more and more that benefit corporations at the expense of the general public, simply amplifying the current position of the Supreme Court. Let’s take a look at some of the most important Supreme Court decisions in the past few years, exemplifying the scope of the problem:

-         Citizens United v. FEC (2010): I believe this may become the hallmark decision of this court, essentially allowing corporations to give unlimited amounts of money to candidates and campaigns. Ironically, this decision that undermines our democracy like few before it (Bush v. Gore and Plessy v. Ferguson comes to mind as two others) was supported by only 20 percent of the public in a survey conducted at the time, and a full 72% wanted Congress to intervene to overturn it. The decision is often credited with the development of “super PACs,”(see this  Slate article, if you have been bamboozled into believing this is not the case)  that raised hundreds of millions for presidential, congressional and state legislative races, with the real impact felt in two main areas – the shift of the House of Representatives from democratic to republican rule in 2010 and at the state level, where conservatives have made major inroads. Ultimately, it didn’t block Obama’s reelection, though that might have been the result of a poor selection in Romney and poor strategic planning at the grassroots level. But look at one example of how spending has changed …

120309_ElectionCycle_DataSet

-         In the related Davis v. FEC, the 5 conservative Justices overturned the “Millionaire’s Amendment,” Congress’s effort to level the playing field in the political process and reduce the influence of wealth on elections by increasing the contribution limits to candidates facing self-funded opponents. As in many of these cases, the legal rationale seemed rather suspect, founded on conflating money with “speech,” as in the above decision.
-         Wal*Mart Decision (2011); Comcast (2013): In a number of cases, with this being the most high-profile, the court has undermined the ability of individuals to band together as a class to fight corporate wrongdoings. In the Wal*Mart case it ruled that women employees could not combine their claims under a common class to fight against discrimination by the corporate behemoth. In 2013, a similar decision ended a class action suit against Comcast, where subscribers in Philadelphia argued that they were using market power to artificially inflate prices (Big Story AP). The problem, according to majority opinion author Antonin Scalia, was that there were four theories covering the $875 million in damages, when there must instead be one common theory. In composite, these decisions have essentially ended one of the most powerful tools to fight corporate malfeasance, allowing consumers, workers or victims to band together and right a corporate wrong. In some cases, it gave victims much needed compensation, but more important was the ability to financially punish corporations for activities against the common good – even when the individual damages were quite small. Without class action suits, businesses will more frequently take their chances with risky and illegal behavior, knowing the chances of being punished have diminished substantially. (Huff Post). This relates to an infamous 2007 decision (Ledbetter v. Goodyear) where the Court ruled that a woman who had been paid less than her male peers for 20 years had no right to bring a lawsuit for equal pay because she failed to file suit within 180 days of the first discrimination—even though she had no way of learning about the discrimination until years later.
-         Vance v. Ball State; U of Texas Southwestern Medical Center v. Nassar (2013): The decision in these two related cases made it harder for individuals to sue businesses for retaliation or discrimination. Particularly appalling was the notion that a supervisor is only defined by the right to hire or fire an employee, thus reducing the ability to challenge discrimination. Essentially, like many other decisions in recent years, it is now easier for employers to fire, abuse and force employees not to unionize than it has been since before WWII. (Huff Post).
-         Riegel v. Medtronic, Inc. (2008): the Court ruled that a consumer who has been seriously injured by a defective medical device cannot sue the manufacturer if the product was approved by federal government regulators, even if the company knew the product was dangerous. This follows a number of decisions in both the regulatory and legal arenas making it harder to protect workers and consumers from injury and harm.
-         Exxon Shipping v. Baker (2008): after 19 years of legal battles, the Court allowed Exxon to escape full financial liability for the damage done by the Exxon-Valdez oil spill to communities and the environment, leaving over 30,000 people whose livelihoods and community were destroyed by the disaster – with only a tenth of the original jury award for punitive damages.


These are but a few of the many, many decisions that have consistently sided with business over the labor, the people and democracy. Overall, the fears that a Roberts court would tack hard to the right has been confirmed. Last year Huff Post did a study of cases in which the Chamber of Commerce filed an amicus brief, finding they were on the winning side 78 percent of the time (14 wins, 3 losses) and undefeated among the 8 controversial cases that went 5-4. This has been the nature of far too many Supreme Court decisions in recent years, reaffirming the Critical Legal Studies insight four decades ago that the law is an ideological, and not rational, institution that tends to serve elite and dominant interests in society. Beyond this, the chamber and its ideological-brethren have had a huge influence on what cases the Supreme Court even hears, with Scotusblog finding in a three-year study that, “[t]he private groups and advocacy organizations that most frequently urge the court to take a case are overwhelmingly pro-business, anti-regulatory, and ideologically conservative.” (Scotusblog) That has certainly been the case since Roberts took over and one that should be a cause for serious concern (unless, of course, you are a corporate exec).

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