“Courting Business”: Scalia Worked Hard To Deny Ordinary Citizens Their Day In Court
In Antonin Scalia’s thirty years on the Supreme Court, his name became a byword for social conservatism. And when Senate Majority Leader Mitch McConnell announced that the Senate would refuse to consider any replacement President Obama nominates it was natural that opponents of same-sex marriage and abortion were relieved. Yet Scalia’s death will have only a limited impact on the culture wars, because regarding many social issues he was already in the minority on the Court. But there is one area where the question of his replacement has huge consequences: business. As a member of the Court’s conservative majority, Scalia played a key role in moving American law in a more corporate-friendly direction. Now that majority is gone, and a huge amount rides on what happens next.
Under Chief Justice John Roberts, the Court has not gone as far in limiting government power over the marketplace as many conservatives would have liked. But the Roberts Court has been the most pro-business of any since the Second World War, according to a paper by the law professors Lee Epstein and William Landes and Judge Richard Posner that looked at decisions from 1946 to 2011. Its five sitting conservatives, including Scalia, ranked among the ten most business-friendly Justices of that period. The Roberts Court hasn’t just made a lot of pro-business rulings. It has taken a higher percentage of cases brought by businesses than previous courts, and it has handed down far-reaching decisions that have remade corporate regulation and law. In Citizens United, it famously ruled that corporations had free-speech rights and that many restrictions on corporate spending in elections were therefore unconstitutional. It has overturned long-standing antitrust restrictions. It has limited liability for corporate fraud and made it harder for workers to successfully sue for age and gender discrimination. It has made suing businesses and governments more difficult, especially in class-action suits.
This is no accident. Since the Reagan Administration, Republican Presidents have filled the Court with Justices steeped in the ideology of the conservative legal movement. As Brian Fitzpatrick, a law professor at Vanderbilt who once clerked for Scalia, told me, “Conservative Justices start from a world view that says we have too much litigation in general and it’s a sap on the economy.” Conservative nominees to the Court have been far more worried about government overreach than about corporate misbehavior. They have been skeptical of the use of class-action suits to achieve social goals or enforce regulations. And, once corporations recognized that the Court was predisposed to favor their interests, they began pursuing those interests more aggressively. As the legendary N.Y.U. law professor Arthur R. Miller told me, “The business community smelled blood and went after it.” Most notably, the Chamber of Commerce has become assiduous in pushing corporate cases to the Court.
A few of these cases have received a lot of attention, but the most consequential work of the Roberts Court in protecting corporate rights has been in cases that have gone mostly unnoticed, including a pair (A.T. & T. v. Concepcion and American Express v. Italian Colors) in which Scalia wrote the majority opinion. In these cases, both of which turned on an interpretation of a once obscure 1925 law, the Court ruled that companies could require customers to give up their right to sue in open court, with disputes to be settled by a private arbitrator instead. “These cases don’t get people’s attention the way things like abortion and same-sex marriage do,” Miller said. But, if the decisions stand, Fitzpatrick argues, “they have the potential to literally wipe out the class-action lawsuit.”
That might not sound like a bad thing—we’re always hearing that Americans are too litigious—but, in an era when regulators are routinely falling down on the job, lawsuits play a crucial role in deterring corporate misbehavior. Miller calls them a “private enforcement of public policies.” And when it comes to big corporations class-action suits are often the only kind that make any economic sense. If every individual defrauded by a company loses fifty dollars, the collective harm can be immense, but it’s not worthwhile for any single victim or lawyer to bother. Fitzpatrick says that obstacles to filing class-action lawsuits make it more likely that “companies will not be held accountable for hurting people, for cheating people, for defrauding people, for discriminating against people.” In that sense, the battle over access to the courtroom is, as Miller puts it, “a kind of class conflict between ordinary individuals and corporate power.” And in that conflict there’s no question which side Scalia was on.
Of course, there’s no guarantee that his death will change things. But many of the Roberts Court’s most important business cases were decided by a 5–4 margin, with the five conservative Justices voting as a bloc. And, as Fitzpatrick points out, “Scalia has done more than any other justice in making it difficult for consumers and employees to bring class-action suits. So his absence alone may make a difference.” There have already been signs of this: just last week, Dow Chemical settled a major class-action suit, saying that Scalia’s death increased the chances of “unfavorable outcomes for business.” It’s unlikely that Scalia will be replaced anytime soon. But let’s hope that, when a successor is finally appointed, it is someone willing to give ordinary citizens the day in court that Scalia worked so hard to deny them.
By: James Surowiecki, Financial Page, The New Yorker, March 7, 2016 Issue; Posted March 1, 2016
“Doing It Wrong”: Stop Attacking Donald Trump’s Politics; Attack His Character Instead
Some Republicans, at least, are starting to cotton up to the idea that if you don’t want someone to win, maybe you attack him. Marco Rubio has begun attacking Donald Trump on the stump. It’s a pretty timid jab, but a significant one for the very message-disciplined candidate who has tried to run a positive campaign.
The problem is that he’s been doing it wrong. Conservatives have insisted on attacking Trump on policy, and in one direction: charging him for not being right-wing enough.
In what may be the most frustrating news to come out of a very infuriating election cycle, Politico describes the reasons why the GOP’s mega-donors and heavy hitters are afraid of launching a wave of attack ads. Only 4 percent of the $238 million in advertising spent by big-money groups so far has targeted Trump. One reason is sheer cowardice (they’re afraid Trump might hit back). But another reason is that previous ads didn’t work.
But these ads are practically designed not to work, because they only reinforce Trump’s message. The ads either decry Trump for being politically incorrect, or describe him as not a traditional conservative. Both things are precisely his appeal, and both boil down to “He’s not one of the guys you hate.” The ads are saying: “All those reasons you like Trump? They’re really true!”
The reason why Trump shouldn’t be president, fundamentally, is not his position (or lack thereof) on this or that issue. Trump doesn’t care about the border wall or ObamaCare (whatever his position on it is this week). The reason Trump shouldn’t be president is because he’s probably a sociopath.
So this is what the attack ads should focus on. The ads should focus on what people like about him, and invert it. As Ross Douthat put it in a column last month:
So don’t tell people that he doesn’t know the difference between Kurds and the Quds Force. (They don’t either!) Tell people that he isn’t the incredible self-made genius that he plays on TV. Tell them about all the money he inherited from his daddy. Tell them about the bailouts that saved him from ruin. Tell them about all his cratered companies. Then find people who suffered from those fiascos — workers laid off following his bankruptcies, homeowners who bought through Trump Mortgage, people who ponied up for sham degrees from Trump University. (…) If you want to persuade his voters that his “New York values” are a problem for them, put his alleged dealings with the Mafia on the table. [The New York Times]
Would these ads work? Well, they just might work enough to puncture his aura of inevitability and maybe, just maybe, keep his ceiling low enough to allow a non-Trump candidate to break through. They sure as heck would work better than doing nothing.
If not now, we’ll find out how well they work once Trump has the nomination locked up and Hillary Clinton starts airing them.
By: Pascal-Emmanuel Gobry, The Week, February 26, 2016
“Protecting Conservative Principles”: Alabama Blocks Local Control On Minimum Wage
It’s been nearly two years since Oklahoma Gov. Mary Fallin (R) announced that her state would not only ignore calls for a higher minimum wage, but also that the state law would block any effort by local Oklahoma communities to raise wages at the municipal level. In other words, if a city in Oklahoma wanted a higher minimum, the state would effectively declare, “Too bad.”
Last year, Michigan Gov. Rick Snyder (R) made the same move, prohibiting local control over minimum-wage increases. And last week, MSNBC’s Zack Roth reported on the identical circumstances playing out the same way in Alabama.
Birmingham, Alabama, raised the city’s minimum wage to $10.10 an hour on Tuesday. Two days later, the state took it away.
Alabama passed a bill Thursday, largely along party lines, that bars cities and counties from raising the minimum wage or requiring employers to provide leave or other benefits. Because the law applies retroactively, it wipes out Birmingham’s raise.
Republican legislative leaders fast-tracked the bill in order to pass it before Birmingham’s raise was set to take effect March 1. The GOP enjoys super-majorities in both houses. Within an hour or so of the bill’s passage, Gov. Robert Bentley (R) announced he had signed it.
It’s amazing how quickly Republican policymakers can move when they feel strongly about an issue. In this case, their zeal applied to blocking a city that wanted to raise its own minimum wage.
The L.A. Times reported that there are now 17 states that prohibit their own cities from raising a local minimum wage – because if there’s one thing the right believes in as a bedrock principle of their entire ideology, it’s the importance of local control, except when Republicans decide they actually believe the exact opposite.
As we discussed the last time this came up, contemporary conservatism generally celebrates the idea that the government that’s closest to the people – literally, geographically – is best able to respond to the public’s needs.
But when communities consider progressive measures Republicans don’t like, those principles are quickly thrown out the window.
So, let this be a lesson to everyone: when officials in Washington tell states what to do, it’s an outrageous abuse and clear evidence of government overreach. When states tell cities what to do, it’s protecting conservative principles.
By: Steve Benen, The Maddow Blog, February 29, 2016
“Secretly On The Ballot In November”: The Future Of The ‘Nuclear Option’ For Supreme Court Nominees
After the initial intense focus on President Obama’s determination to nominate a successor to Antonin Scalia and Senate Republicans’ determination to block him, it’s beginning to sink in that the struggle for control of the Supreme Court could be a complicated and drawn-out battle. As Juliet Eilperin and Robert Barnes of the Washington Post point out today, the next president could have more than one chance to appoint a justice, and both conservatives and liberals understand the stakes could be huge:
The Scalia vacancy technically gives Obama the chance to establish a liberal majority on the court for the first time in decades, but even if he manages to seat a new justice in the face of blanket GOP opposition, the victory could be fleeting …
Scalia’s death at age 79 shows the peril of making predictions about the Court’s future, but the age range among the current justices would suggest that a Republican successor to Obama could have greater impact on remaking the court than a Democrat, especially if Scalia’s seat stays vacant into the next administration. Simply put, the court’s liberal bloc is older and may offer more opportunities for replacement.
When the new president is inaugurated, Associate Justice Ruth Bader Ginsburg will be almost 84. Anthony Kennedy will be 80 and Stephen Breyer, 78. Replacing Ginsburg and Breyer, both appointees of President Clinton, with conservatives would instantly shift the court’s balance for years, even if an Obama’s appointee were to replace Scalia. (The next oldest justice is Thomas, who was nominated by George H.W. Bush and will be 68 this summer.)
Many conservatives, of course, hate Kennedy, too; he was the swing vote in upholding Roe v. Wade in 1992, and played a key role in the Court’s marriage-equality decisions.
But more fundamentally, partisan polarization and gridlock in Congress has significantly elevated the importance of non-legislative entities, including the federal courts and executive-branch agencies whose power the courts might choose to expand or restrain. So control of the commanding heights of the Supreme Court is more important than ever.
What complicates the issue is the precedent set by Senate Democrats under Harry Reid in 2011 (Republicans had come close to taking the same action in 2005): the so-called “nuclear option,” removing the right to filibuster executive branch and non-SCOTUS judicial appointments. With both parties in the Senate steadily retreating from the ancient practice of deferring to the president’s choices for the High Court, and with the hot-button issues facing SCOTUS making “compromise” choices less feasible, the difference between having to muster 50 and 60 Senate votes to confirm a presidential nomination is increasingly momentous. And for that reason, if either party wins both the White House and the Senate this November, going “nuclear” on SCOTUS appointments by getting rid of the filibuster is a very high probability (and even if it doesn’t happen, the threat of “going nuclear” can and will be used to force the minority party to be reasonable).
But the converse situation is worth pondering, too. If, to cite a lively possibility, Democrats hang onto the White House while Republicans hang onto the Senate, there is no way the Senate invokes the “nuclear option.” Senate resistance to a progressive justice would likely stiffen in 2018, when Republicans will enjoy one of the most favorable Senate landscapes in memory. 25 of 33 Senate seats up that year are currently Democratic, including five in states Obama lost twice. Add in the recent GOP advantage in the kind of voters most likely to participate in midterm elections, and the ancient tendency of midterm voters to punish the party controlling the White House, and the odds of a Democratic president being able to impose her or his will on the Senate on crucial SCOTUS nominations between 2019 and 2021 is very slim.
If Democrats want to shape the Court’s future, they’d do well not only to win the White House but to take back the Senate this November, and get rid of the SCOTUS filibuster in hopes that restoring it will be too controversial for Republicans even if they reconquer the Senate in 2018. By then, of course, Senate Republicans may be looking forward to their own ability to shape the Court after 2020 if they win back the presidency then. It’s going to be a chess game with big and continuing arguments over the rules.
By: Ed Kilgore, Daily Intelligencer, New York Magazine, February 29, 2016
“Assessing The Threats We Face”: Which Candidate Has Most Accurately Defined Those Threats And Offered A Way Forward
Obviously, Hillary Clinton’s firewall held – at least in South Carolina – where she beat Bernie Sanders by almost 50 points on Saturday. In doing so, she won 86% of the vote from African Americans. But perhaps even more importantly:
Black voters in South Carolina cast 6 in every 10 Democratic primary votes, according to CNN’s exit poll data. That ratio is huge — and sets a record-high in South Carolina black voter participation rate. The previous high was 55 percent, set in 2008, when the first black president was on his way to being elected.
For a while now, the question has been whether or not people of color – particularly African Americas – would turn out for the Democratic candidate in the numbers we saw when Barack Obama was on the ballot. At least in the South Carolina primary, they actually exceeded that benchmark.
That was surprising to some people. But perhaps a quick walk down memory lane explains what happened.
First of all, I’ve already noted how the nomination and election of Barack Obama was greeted with both hope and terror in the hearts of many African Americans. The hope was the culmination of something most thought they wouldn’t see in their lifetimes. Beyond that, the way this President and his family have handled themselves in office has been a great source of pride, while his accomplishments will give him a place of honor in our history. Therefore, in many Black homes he has been adopted as part of the family.
But the terror indicated that those who felt it were very aware of the fact that we had not reached a post-racial America. Almost immediately during the 2008 election Obama was accused by those on the right of “paling around with terrorists,” saw vicious attacks on his pastor and had his citizenship in this country questioned. Once he was elected, we witnessed unprecedented obstruction and disrespect of – not just his policies – but his very personhood. This country’s first African American president consistently faced an opposition that challenged his legitimacy in office.
Meanwhile, the courts and Republican legislators all over the country have been attempting to roll back the voting rights that so many African Americans fought and died for, and they are watching their sons and daughters be killed at the hands of police officers and vigilantes.
We are now witnessing a Republican presidential primary where the candidates are racing to outdo each other in their contempt for people of color. The field is being led by someone who has been embraced by white supremacists and just yesterday refused to disavow the support he is receiving from KKK groups – claiming he needs to do research to understand who they are.
With all of that, is it any surprise that African Americans would assume that this country is facing the threat of a confederate insurgency?
Into that mix comes the Democratic candidate Bernie Sanders, whose campaign is based on the idea that we are living in an oligarchy where both Parties have been captured by the forces of Wall Street. That defines the threat very differently than what many African Americans see and feel right now.
In addition, Sanders has a history of calling President Obama naive and suggesting that he should be primaried in 2012. One of his most prominent surrogates in the African American community once said that the President had a “fear of free black men” and just recently suggested that civil rights heroes like Rep. John Lewis and Jim Clyburn have been bought off by Wall Street.
Compare that to Hillary Clinton, who has embraced President Obama and promised to build on his legacy. Not only that…she recognizes the challenges we face in breaking down the barriers that divide us and keep people marginalized.
Clinton and Sanders have assessed the threats we face very differently. Voters are faced with a choice of which candidate has most accurately defined those threats and offered a way forward. It should come as no surprise to anyone why African Americans are vigorously aligned with Clinton’s vision.
By: Nancy LeTourneau, Political Animal Blog, The Washington Monthly, February 29, 2016
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