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“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

March 1, 2016 Posted by | Antonin Scalia, Businesses, Citizens United, Corporations | , , , , , , , | Leave a comment

“A Lucrative Fight Against Big Brother”: Much Of Movement Conservatism Is A Con And The Base Are The Marks

In recent months, the extent to which fundraising drives Republican tactics has come into sharper focus. As conservatives prepared for their government shutdown, for example, Brian Walsh, a former spokesperson for the National Republican Senatorial Committee, said, “[T]his is about political cash, not political principle.”

This quote came to mind late last week when Sen. Rand Paul (R-Ky.) announced he plans to lead a class action lawsuit against the NSA over its data collection programs.

Paul claimed on Fox News that since he started collecting signatures six months ago, hundreds of thousands of people have signed on. Paul wants to take his suit to the Supreme Court.

“The question here is whether or not, constitutionally, you can have a single warrant apply to millions of people,” Paul said of the suit. “So we thought, What better way to illustrate the point than having hundreds of thousands of Americans sign up for a class action suit?”

Because of the scope of the NSA’s activities, Paul added, “every person in America who has a cell phone would be eligible for this suit.”

To be sure, legal challenges to NSA surveillance programs are important and noteworthy, and lawmakers should be engaged in a meaningful debate over the scope and utility of the national security state. A class-action suit like this one would be worth watching closely.

But taking a closer look at Rand Paul’s initiative raises questions about what’s really driving the effort.

In this case, Paul hasn’t actually filed the lawsuit; he’s simply talking to conservative media outlets about his intention to eventually go to court. When might we expect this to begin? “His office did not give the specific timeline for when the senator would file the suit,” The Hill reported.

Well, at least it’ll break new legal ground, right? Actually, no: “So far though, the details of Paul’s lawsuit are murky. A legal counsel for Paul told Daily Intelligencer Friday that he expects the case will be similar to another NSA suit filed by birther provocateur Larry Klayman.”

Hmm. So, Rand Paul is eager to talk to conservative media about a lawsuit he hasn’t filed that will be duplicative of a lawsuit someone else has already filed. So why bother? Steve M. at No More Mister Nice Blog flagged a likely explanation:

Paul’s Senate campaign website already encourages individuals to “please sign below and join my class-action lawsuit and help stop the government’s outrageous spying program on the American people.”

The solicitation, which asks for individuals’ names, email addresses and zip codes, also asks for a donation to help “stop Big Brother from infringing on our Fourth Amendment freedoms.”

Oh, I see. Rand Paul’s campaign operation – as opposed to his Senate office – is overseeing this project. Like-minded Americans can fight “Big Brother” by giving a U.S. senator their name, email address, zip code, and their credit card number if they don’t mind. Paul isn’t talking to conservative media to talk about the lawsuit – because at this point, there is no lawsuit – so much as he’s making the rounds to encourage people to go to his campaign website. That way, they can support a project that will encourage the senator to go to court to file a suit that another conservative group is already litigating.

Chris Hayes made a comment last year that continues to resonate: “Much of movement conservatism is a con and the base are the marks.”

 

By: Steve Benen, The Madow Blog, January 7, 2014

January 8, 2014 Posted by | Conservatives, Rand Paul | , , , , , , | Leave a comment

The Supreme Court’s Continuing Defense Of The Powerful

The United States Supreme Court now sees its central task as comforting the already comfortable and afflicting those already afflicted.

If you are a large corporation or a political candidate backed by lots of private money, be assured that the court’s conservative majority will be there for you, solicitous of your needs and ready to swat away those pesky little people who dare to contest your power.

This court has created rules that will have the effect of declaring some corporations too big to be challenged through class actions, as

AT&T customers and female employees at Wal-Mart discovered.

And remember how sympathetic conservatives are supposed to be to the states as “laboratories of democracy,” pioneering solutions to hard problems?

Tell that to the people of Arizona.

They used a referendum to establish a highly practical system of financing political campaigns that the court, in a 5-4 decision Monday, eviscerated. It was designed to reduce corruption and give a fighting chance to candidates who decide to forgo contributions from special interests.

The people acted, noted Justice Elena Kagan in a brilliantly scalding dissent, after a scandal in which “nearly 10 percent of the state’s legislators were caught accepting campaign contributions or bribes in exchange for supporting a piece of legislation.”

Under Arizona’s “clean elections” initiative, candidates who raised a modest amount in very small contributions could receive a lump sum of public money. They could raise no further private funds.

No candidate had to join the public system. But if a privately financed candidate or the interest groups supporting his or her campaign started outspending one who was publicly financed, the public system came to the rescue with additional cash so the “clean money” candidate wouldn’t be blown out of the race by lethal dollar bills.

Why was this important? Kagan was spot on: “Candidates will choose to sign up” for public funding “only if the subsidy provided enables them to run competitive races.” Such breathtaking common sense has been missing from the majority’s recent campaign finance decisions — notably its Citizens United ruling, also a 5-4 conservative ukase, allowing our poor, beleaguered corporations to expand their power in American politics.

Here’s the stunning part: For years, opponents of campaign finance reform have accused those who want to repair the system of trying to reduce the amount of political speech. But Arizona’s law, as Kagan pointed out, “subsidizes and so produces more political speech.” And then there was this shot at Chief Justice John Roberts’ majority opinion: “Except in a world gone topsy-turvy, additional campaign speech and electoral competition is not a First Amendment injury.”

Indeed, Roberts had to argue that those terribly downtrodden candidates financed with private money had their speech “burdened,” simply because their publicly financed opponents had the means to respond.

Kagan and the dissenters stood up for free speech. Roberts’ majority defended paid speech. The dissenters want to allow candidates to talk; the majority wants to enhance money’s ability to talk.

Roberts was especially exercised over any notion of “leveling the playing field” between private-money candidates and their challengers. He even included a footnote calling attention to the Citizens Clean Elections Commission’s Web site, which once said the law was passed “to level the playing field when it comes to running for office.” Horrors!

Kagan archly noted the “majority’s distaste for ‘leveling’ ” and then dismissed its obsession, observing that Roberts failed to take seriously the Arizona law’s central purpose of containing corruption. Leveling was the means, not the end.

Nonetheless, pay heed to how this conservative court majority bristles at nearly every effort to give the less wealthy and less powerful an opportunity to prevail, whether at the ballot box or in the courtroom. Not since the Gilded Age has a Supreme Court been so determined to strengthen the hand of corporations and the wealthy. Thus the importance of the Wal-Mart and AT&T cases, the latter described by the New York Times as “a devastating blow to consumer rights.” Will the court now feel so full of its power that it takes on the executive and legislative branches over the health-care law?

In 1912, Theodore Roosevelt warned that the courts had “grown to occupy a position unknown in any other country, a position of superiority over both the legislature and the executive.” Worse, “privilege has entrenched itself in many courts just as it formerly entrenched itself in many legislative bodies and in many executive offices.”

What happens to a democracy when its highest court dedicates itself to defending privilege? That’s the unfortunate experiment on which we are now embarked.

By: E. J. Dionne, Opinion Writer, The Washington Post, Published June 29, 2011

July 4, 2011 Posted by | Class Warfare, Congress, Conservatives, Constitution, Corporations, Democracy, GOP, Government, Ideologues, Ideology, Middle Class, Politics, Republicans, Right Wing, SCOTUS, Wealthy | , , , , , , , , , , , | 2 Comments

The Republican Supreme Court Sticks It To The Little Guy (Again)

Once again the United States Supreme Court under Chief Justice John Roberts has shown the nation it will always favor corporations over people even if it means conjuring new law out of thin air.  Like Citizens United, the recent 5-4 ruling in AT&T’s favor gutting the power of consumers to file class-action lawsuits against giant corporations tips the scales of justice against the people and renders the enormous power of corporations even more enormous.

When I first heard about the case, AT&T Mobility v. Concepcion there was little doubt in my mind that the Gang of Five — John Roberts, Antonin Scalia, Samuel Alito, Anthony Kennedy, and Clarence Thomas would figure out a way to ignore Supreme Court precedent and again apply their judicial activism in service to the corporations, and by extension, to the oligarchy they apparently believe the “founders” intended.

It’s kind of funny when we see Republican presidential candidates like Mitt Romeny, Tim Pawlenty, and Newt Gingrich pandering to the “little guy” denouncing “elites” who are trampling on their rights only to remain mute on the fact that their beloved Republican Supreme Court never, ever rules in favor of the “little guy.”

The Republican president Ronald Reagan gave us Scalia and Kennedy; the Republican president George Herbert Walker Bush gave us Thomas; and the Republican president George W. Bush gave us Roberts and Alito.  This cabal has shown over and over again where its true loyalties lie, not to “the law,” not to “the Constitution,” not to “calling balls and strikes,” but to a 21st century version of corporate feudalism.  This new corporate feudalism that the High Court is determined to thrust on the nation is even more exploitative than the earlier brand of Medieval feudalism because it is absent noblesse oblige.

The serfs toiling on the corporate plantation can only continue to pay Chase and Bank of America for their underwater mortgages, ExxonMobil and Chevron for their $4 a gallon gas, and AT&T, Comcast, T-Mobile and the rest for the privilege of communicating in a modern society.  And if the serfs seek redress the High Court will slap them down before they can get anything substantial off the ground.  With Citizens United placing a stranglehold of corporate power over our state, local, and federal system of elections, we cannot turn to our political “leaders” for redress, we can’t turn to the courts, and we certainly can’t turn to trying to morally persuade sociopathic non-human entities called corporations — so where does that leave us?

In the current context of unrestrained corporate dominance it’s unconscionable that the Obama administration has not done more to blunt its disastrous effects.  The Justice and Treasury Departments, the Securities and Exchange Commission, the Internal Revenue Service, etc. could be doing a hell of a lot more in bringing balance to the equation of corporations versus people.  The administration’s lagging performance in holding Wall Street accountable is well known, but it won’t even lift a finger to block grotesque mergers like the one between Comcast and NBC Universal, and AT&T and T Mobile.  In all these mergers and acquisitions it’s always the consumers and the employees who lose, while the CEOs and a select few of shareholders and financiers make out like the bandits they are.

Nothing illustrates the corruption rampant in Washington more than the recent resignation of Federal Communications Commission member, Meredith Attwell Baker, a Republican who Obama appointed to show how “bipartisan” he can be, who is now going to work as a lavishly paid shill for the very industry she was supposedly “regulating.”  Ms. Baker will now make the big bucks serving Comcast/NBC Universal after she voted for the merger of Comcast and NBC Universal.  Sweet.   And few in the Beltway see anything unsavory about it.

Our political leaders, our Supreme Court, our captains of industry and finance, are so out of touch it’s going to be a long, long time before ordinary working people see any relief.  All of our institutions, political, economic, even religious, social, and cultural, all of them, are failing the people miserably in pursuit of the Almighty Buck.  The cunning game of appointing young ideologues to the bench has paid off handsomely for the corporate power structure.  Someone should tell those people running around in tri-cornered hats and talking about the “founders” that it might be wise to save an ounce of their collective wrath for the Republicans who have appointed five Justices who are trampling on individual freedoms in service of corporations.

By: Joseph A. Palermo, The Huffington Post, May 15, 2011

May 15, 2011 Posted by | Big Business, Businesses, Congress, Consumers, Corporations, Elections, Justice Department, Lawmakers, Politics, Regulations, Supreme Court | , , , , , , , , , , , , , , , , , , , | Leave a comment

   

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