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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

“Social Conservatives’ Misplaced Fury”: Republican Policymakers Are Already Doing The Bidding For The Religious Right

Officials at the Republican National Committee can read polls just as well as anyone else, and they realize their party’s social agenda is not popular with the American mainstream. Indeed, just this week, a new NBC News/Wall Street Journal poll found by a 2-to-1 margin, Americans disagree with the Republican Party’s approach to social and cultural issues.

With that in mind, Reince Priebus and others are at least paying lip service to rebranding the party, hoping to move away from “Old Testament” associations. It’s apparently driven social-conservative activists and the religious right movement to the brink of apoplexy.

A group of high-profile social conservatives warned Republican National Committee Chairman Reince Priebus in a letter this week that their supporters could abandon the GOP if the party seeks to change its position on social issues, particularly same-sex marriage.

Thirteen social conservatives, representing various influential groups, wrote Priebus ahead of the RNC’s quarterly meeting this week in Los Angeles to sternly rebuke the conclusions of a post-election report that advised Republican elected officials to adopt a softer tone toward social issues.

“We respectfully warn GOP Leadership that an abandonment of its principles will necessarily result in the abandonment of our constituents to their support,” concludes the letter, which was obtained by and independently verified by NBC News in advance of the meeting this week.

The letter further asks GOP committeemen to pass a resolution at their meeting this week re-affirming the party’s 2012 national platform, which includes language calling for bans on abortion and same-sex marriage.

That nine of the 13 groups involved in this effort are 501(c)3 tax-exempt organizations, legally prohibited from supporting political parties, may be of interest to the Internal Revenue Service.

Nevertheless, the warning coincides with a call from Tony Perkins, president of the right-wing Family Research Council, that social conservatives stop contributing to the RNC until the party starts “defending core principles.”

I understand that social conservatives are furious. I just don’t understand why.

Given the intensity of the reactions from these far-right leaders, one might think Republicans were giving up on the culture war altogether and the RNC had just named a new LGBT outreach coordinator.

I’m not sure where social conservatives are getting their coverage of current events, but I’ve got some news for them: the Republican Party hasn’t given up on their issues. On the contrary, GOP officials appear to be fighting the culture war harder than ever.

Why, exactly, do social conservatives feel so aggrieved? On a purely superficial level, the party does not want to be perceived as right-wing culture warriors because Priebus and Co. realize that this further alienates younger, more tolerant voters. But below the surface, Republicans, especially at the state level, are banning abortion and targeting reproductive rights at a breathtaking clip, pursuing official state religions, eliminating sex-ed, going after Planned Parenthood, and restricting contraception. Heck, we even have a state A.G. and gubernatorial candidate fighting to protect an anti-sodomy law.

What’s more, folks like Priebus are condemning Planned Parenthood and “infanticide,” while Paul Ryan is speaking to right-wing groups about a future in which abortion rights are “outlawed.”

And social conservatives are outraged that Republicans haven’t pushed the culture war enough? Why, because the RNC hasn’t officially declared its support for a theocracy yet?

Religious right activists, I hate to break it to you, but Republican policymakers are already doing your bidding. You’re not the ones who should be whining.


By: Steve Benen, The Maddow Blog, April 12, 2013

April 13, 2013 Posted by | Politics | , , , , , , , , | Leave a comment

What If Contraception Could Decimate The Abortion Rate?

In Ross Douthat’s weekend NY Times column, he mediates in the long-running argument  liberals and conservatives have waged over sex, abortion, and contraception. Liberals argue that widespread access to contraception is the surest way to reduce unwanted pregnancies, he writes, whereas conservatives believe “it’s more important to promote chastity, monogamy and fidelity than to  worry about whether there’s a prophylactic in every bedroom drawer or  bathroom cabinet.”
Both narratives are contradicted by the facts, he argues. For example, socially conservative regions feature higher rates of teenage parenthood and unwed pregnancy than the nation as a whole.
He goes on:

Liberals love to cite these numbers as proof that social conservatism is a flop. But the liberal narrative has glaring problems as well. To  begin with, a lack of contraceptive access simply doesn’t seem to be a  significant factor in unplanned pregnancy in the United States. When the Alan Guttmacher Institute surveyed more than 10,000 women who had procured abortions in 2000 and 2001, it found that only 12 percent cited problems  obtaining birth control as a reason for their pregnancies. A recent  Centers for Disease Control and Prevention study of teenage mothers found similar results: Only 13 percent of the teens reported having had trouble getting contraception.

Is the takeaway really that lack of contraceptive access isn’t a significant factor in unplanned pregnancy? If roughly 1 in 10 unplanned pregnancies is caused by lack of access to birth control, that seems very significant! If I approached Douthat, having devised a way to reduce the American abortion rate by just 5 percent without coercion or significant expense, I suspect he’d be very enthusiastic, and think I accomplished something important. The issue here is that he’s unpersuaded these teens would’ve avoided pregnancy even if they’d been given access to birth control.
As he writes:

…if liberal social policies really led  inexorably to fewer unplanned pregnancies and thus fewer abortions, you  would expect “blue” regions of the country to have lower teen pregnancy  rates and fewer abortions per capita than demographically similar “red”  regions. But that isn’t what the data show. Instead, abortion rates are  frequently higher in more liberal states, where access is often largely  unrestricted, than in more conservative states, which are more likely to have parental consent laws, waiting periods, and so on. “Safe, legal  and rare” is a nice slogan, but liberal policies don’t always seem to  deliver the “rare” part.

But the “liberal social policies” he conflates can be teased apart. What if contraceptive access reduces unplanned pregnancies in some jurisdictions, even as women who do get pregnant in those same places have abortions at higher rates due to unrestricted access or the fact that abortion is less stigmatized? As if in anticipation of that very counterargument, he goes on to write:

What’s more, another Guttmacher Institute study suggests that liberal  states don’t necessarily do better than conservative ones at preventing  teenagers from getting pregnant in the first place. Instead, the lower  teenage birth rates in many blue states are mostly just a consequence of (again) their higher abortion rates. Liberal California, for instance,  has a higher teen pregnancy rate than socially conservative Alabama; the Californian teenage birth rate is only lower because the Californian  abortion rate is more than twice as high.

But California’s higher teenage pregnancy rate is substantially driven by Hispanic immigrants whose religious and cultural background is relatively antagonistic to contraceptives. And if we’re citing numbers generated by the Guttmacher Institute, surely the ones that followare relevant to this subject:

– Publicly funded family planning services help women to avoid pregnancies they do not want and to plan pregnancies they do. In 2008, these services helped women in California avoid 317,900 unintended pregnancies, which would likely have resulted in about 141,300 unintended births and 132,700 abortions.
– Contraceptive services provided at Title X-supported centers in California helped prevent 200,200 unintended pregnancies, which would likely have resulted in about 89,000 unintended births and 83,600 abortions.

If you think that abortion is the killing of an innocent human, surely you should regard a contraceptive policy thought to result in tens of thousands of fewer abortions per year as a significant achievement, unless you think that the policy is causing lots of other abortions to occur. The Guttmacher Institute has published analysis that reaches precisely the opposite conclusion.
And increasing the availability and effectiveness of contraception seems like a more achievable task than reducing abortions by re-establishing bygone norms of chastity, monogamy and fidelity (none of which, by the way, are incompatible with widespread access to effective birth control).


By: Conor Friedersdorf, The Atlantic, February 21, 2012

February 22, 2012 Posted by | Abortion, Birth Control | , , , , , , , | 1 Comment


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