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 …
-
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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