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
Judge Vinson’s Health Care Smackdown: What’s A Tea Party Without Tea Leaves?
In his spare time, U.S. District Judge Roger Vinson, the author of Monday’s sweeping ruling gutting as “a bridge too far” the entirety of the Patient Protection and Affordable Care Act, apparently serves as the president of the board of directors of the American Camellia Society, an industrious group that evidently appreciates and nurtures a tiny, colorful corner of God’s Green Earth. The camellia is known around the world not just as a plant that produces beautiful flowers — it is the state flower of Alabama, for example — but also as a plant that produces tea leaves. And what’s a Tea Party, after all, without a healthy supply of tea leaves?
It cannot be a coincidence, then, that Judge Vinson, the Reagan appointee who has chosen reverence to the camellia as a hobby, would choose to compare (unfavorably, even) the Obama Administration’s complicated (and increasingly endangered) effort to bring health insurance to 30 million Americans with the efforts of King George III and the British East India Company to tax the tea the colonials quoffed.
“It is difficult to imagine,” Judge Vinson wrote in his 78-page ruling, “that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.”
Tea Party analogy? Check. Head-scratching analysis? Check. Judge Vinson wrote:
“… the mere status of being without health insurance, in and of itself, has absolutely no impact whatsoever on interstate commerce (not ‘slight,’ ‘trivial,’ or ‘indirect,’ but no impact whatsoever) — at least not any more so than the status of being without any particular good or service. If impact on interstate commerce were to be expressed and calculated mathematically, the status of being uninsured would necessarily be represented by zero. Of course, any other figure multiplied by zero is also zero. Consequently, the impact must be zero, and of no effect on interstate commerce.
The uninsured can only be said to have a substantial effect on interstate commerce in the manner as described by the defendants: (i) if they get sick or injured; (ii) if they are still uninsured at that specific point in time; (iii) if they seek medical care for that sickness or injury; (iv) if they are unable to pay for the medical care received; and (v) if they are unable or unwilling to make payment arrangements directly with the health care provider, or with assistance of family, friends, and charitable groups, and the costs are thereafter shifted to others.”
Got that? The uninsured can only have a “substantial effect on interstate commerce” — and thus be regulated by Congress — if they are subject to the precise conditions which exist today all over the country, and which prompted the Act in the first place. The judge acknowledges this point, to his credit, saying that the Congress would of course have the power to regulate the millions of people who meet his five criteria above. But he then concludes: “But, to cast the net wide enough to reach everyone in the present, with the expectation that they will (or could) take those steps in the future, goes beyond the existing ‘outer limits’ of the Commerce Clause” (emphasis in original).
I suspect there will be a million words of legal and political analysis over the logic and viability of that conclusion.
Unsolicited and simplistic recommendations for the legislative branch? Also check. Judge Vinson wrote: “If Congress intends to implement health care reform — and there would appear to be widespread agreement across the political spectrum that reform is needed — it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not.” In other words: Try again, Congress, and good luck with that!
Painfully half-hearted expression of regret for kicking the entire Affordable Care Act to the curb? Check. Judge Vinson wrote: “I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate. That is not to say, of course, that Congress is without power to address the problems and inequities in our health care system. The health care market is more than one sixth of the national economy, and without doubt Congress has the power to reform and regulate this market. That has not been disputed in this case. The principal dispute has been about how Congress chose to exercise that power here” (emphasis added).
I am sure that others, including some of my colleagues here at the Atlantic, will be spending time in the coming hours and days further parsing the ruling. For me, for now, it’s enough to say that Judge Vinson delivered for opponents of the Act precisely what he had promised them one month ago in open court in the motion hearing; a epic, hero-to-a-cause ruling that somehow makes U.S. District Judge Henry Hudson’s ruling last month in Virginia, which also struck down the “individual mandate,” seem like a relative exercise in judicial restraint. And that’s saying something.
Two federal trial judges (Democratic appointees both) have declared the law valid. Now two federal trial judges (Republican appointees both) have declared the law invalid. Ultimately, the United States Supreme Court — and by that I mean swing-voter Justice Anthony Kennedy, who also is a Reagan appointee — will decide. But no matter what happens from here on in, Judge Vinson, lover of flowers and tea-leaf-reader by choice, has just ensured himself at least one more day in the sun.
By: Andrew Cohen -The Atlantic-January 31, 2011: Andrew Cohen has served as chief legal analyst and legal editor for CBS News and won a Murrow Award as one of the nation’s leading legal analysts and commentators.
Narrowly Dodged Bullets: John Roberts’s Dissenting Opinions
Activism at it's best...and you're worried about Elena Kagan?
Yet Roberts’s 5-4 giveaways to corporate America only tell half the story. Indeed, Roberts has authored or joined numerous radical dissents that would give powerful corporate interests sweeping immunity from the law. This stands in stark contrast to his confirmation hearing promise to display “humility” and accept his own “modest role” as a justice.
- Immunity for drug companies: A dangerous drug was injected into the arm of a woman named Diana Levine in 2000, eventually costing her half her right arm and her career as a professional musician. A Vermont jury ordered the drug’s manufacturer to compensate Levine, but Roberts joined a dissent in Wyeth v. Levine that would have held drug companies largely immune from state law. Had this dissent prevailed, states would be powerless to protect women like Levine from drug defects or defective drug labels discovered after the Food and Drug Administration approves a drug for use.
- Protecting rogue banks: Roberts joined a dissent in a similar case, Cuomo v. Clearinghouse, arguing that federal regulators properly gave the banking industry broad immunity from state law—despite no legal basis for doing so. Had Roberts’s views carried just one more vote, state fair-lending laws and many other consumer banking protections would have effectively ceased to exist.
- Justice for sale: After A.T. Massey Coal Company—the same company whose negligent safety record led to the death of 29 miners in a recent explosion—lost a $50 million verdict, its CEO paid $3 million to elect a sympathetic justice to a state supreme court. This justice then cast the deciding vote overturning the verdict against Massey—a 1,667 percent return on the CEO’s investment. Roberts’s dissent in Caperton v. Massey said this bought-and-paid-for judge was under no obligation to recuse himself from Massey’s case.
- Deceptive marketing: Finally, Roberts voted to cut off deceptive advertising claims in Altria v. Good. In his eyes the tobacco industry should have extensive immunity from state laws preventing fraudulent marketing.
Roberts rarely finds himself in dissent since he leads a bloc of conservatives committed to protecting corporate interests. Nevertheless, his few dissenting opinions in corporate immunity cases reveal a willingness to aggrandize corporate power even more so than he already has in cases like Citizens United or Rent-a-Center.
Such zealous advocacy would be entirely appropriate were Roberts still an attorney for corporate interests. He gave up that role, however, when he became a judge. It’s time for him to live up to his promise to be modest and humble in his decision making.
By Ian Millhiser | June 28, 2010-Center For American Progress; Photo-SOURCE: AP/Nick Ut
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