Federal Courts and Nominations

The US supreme court may soon become plutocracy’s greatest defender

If you get your news from the political press and television ads, you might think the US supreme court is a forum that only adjudicates disputes over the most hot-button religious and civil rights issues. What you would not know is that while the court does periodically rule on those important matters, it spends as much or more of its time using business-related cases to help billionaires and corporations rig the economy against ordinary Americans.

In light of that, Amy Coney Barrett’s US supreme court nomination must be understood as the culmination of cynical tactics that Republicans have perfected over the last two decades. The strategy is straightforward: they nominate plutocrat-compliant judges knowing that the corporate-owned media and political system will make sure confirmation battles focus on partisan wrangling and high-profile social issues – but not also on the economic issues that justices often decide.

In other words: Republican politicians rely on conflagrations over political process and social issues to mobilize their religious base in service of Republican donors’ real objective – smuggling corporate cronies on to the highest court in the land. And if Barrett is confirmed, those Republican donors will not just get another business-friendly judge – in advance of the 2020 election, they will also get a third justice who worked directly on the legal team that convinced the US supreme court to hand Republicans the presidency in 2000.

To be sure, Barrett’s record on social issues is extreme and worthy of scrutiny, criticism and organized opposition, especially at a time when crucial precedents may be on the line. She signed an ad criticizing Roe v Wade and she has suggested that a more conservative court could accept state restrictions on abortion clinics. As a judge, she has also written dissenting opinions against limits on gun rights and in favor of a Trump administration rule to try to make it harder for low-income immigrants to enter the United States.

Those issues, however, are almost certainly not what is motivating big donors to funnel millions of dollars into groups like the Judicial Crisis Network, the oil magnate Charles Koch’s network and the US Chamber of Commerce in support of Barrett’s nomination. Those groups’ ads and lobbying campaigns may try to focus the public debate on religion and court precedent, but such enormous sums of cash flood into judicial campaigns with one underlying goal: enriching the corporations and plutocrats that are making the donations.

These organizations know the supreme court is the place to do exactly that – and they have been wildly successful in stacking the court since 2005.

That was the year that business interests engineered John Roberts’ ascension to supreme court chief justice. Back then, corporate groups launched what was their first sophisticated public campaign to install a new jurist on the court – and Roberts was the perfect pick. He had advised the Bush 2000 legal team, he represented corporate clients in private practice and he was considered “the go-to lawyer for the business community”.

Roberts’ business fealty was not the focus of his court confirmation hearings – and that omission is now standard practice. Indeed, other than the brief controversy over Neil Gorsuch’s ruling in a workers’ rights case, recent confirmation battles have rarely ever homed in on nominees’ views on corporate power.

And yet, the Roberts court has been defined by its allegiance to big business. According to the Constitutional Accountability Center, 70% of the Roberts court’s rulings in business cases have sided with the US Chamber – the pre-eminent business lobby group in Washington. That is the highest rate of corporate loyalty of any supreme court in 40 years, and it is a bipartisan affair: Republican-appointed judges are almost always siding with business interests, and in roughly half the cases, Democratic-appointed justices have been with them, too.

While Roberts’ break with conservatives on a few cases have led liberals to see him as a sensible moderate, he has presided over a radical court that has helped transform the economy. The court has limited unions’ political power, reduced workers’ bargaining rights, blocked class-action lawsuits against corporate wrongdoers, strengthened fossil fuel companies’ power and emboldened big money interests to buy elections. Even rulings that don’t seem to revolve around corporate power have ended up setting precedents that help strengthen commercial interests power over American society.

Now comes Barrett – a nominee whose confirmation battle appears to be following the same playbook. So far, the fight is focusing on religion and social issues – but not also on how she could lock in an anti-worker corporate-friendly majority.

Barrett is no moderate on economics. An analysis from the watchdog group Accountable Us found that as a circuit court judge, she “faced at least 55 cases in which citizens took on corporate entities in front of her court and 76% of the time she sided with the corporations”.

Only a month before Barrett was nominated to the high court by Donald Trump, she delivered a ruling that could help corporations avoid paying overtime to gig workers. That ruling followed her other rulings limiting the enforcement of age-discrimination laws, restricting the government’s power to punish companies that mislead consumers and curtailing consumers’ rights against predatory debt collectors.

The UCLA law professor Adam Winkler said that if Barrett is confirmed, the consequences could reverberate for decades. “This would really push the court over the top,” said Winkler, the author of the book We the Corporations: How American Businesses Won Their Civil Rights. “You would have a very strong 6-3 conservative majority. And unlike previous times where conservatives had most of the seats on the court, none of the conservatives on [this] court really swing liberal on business or corporate power issues. John Roberts has swung liberal on a few cases in recent years to the celebration of many but his track record is pretty unambiguous and pretty consistently pro-business and anti-consumer.”

Trump and Republican lawmakers are clearly trying to steer the confirmation battle into focusing only on social and cultural issues, because they think that is their most favorable political terrain. They do not want the upcoming Senate hearings to spotlight the corporate power issues that might make rank-and-file conservative voters see Barrett’s nomination as an economic betrayal of the working class.

The question now is whether or not the Senate minority leader, Chuck Schumer, and the House speaker, Nancy Pelosi, will use all of the procedural power at their disposal to slow the nomination and expose Barrett’s long record of taking the side of the powerful against the people.

If Democratic leaders do pursue such a strategy, they could stall the confirmation by turning the process into a referendum on economic inequality at precisely a moment when Americans have become acutely aware of the downsides of oligarchy.

If they reject that strategy, then the court could become a corporate star chamber for the rest of our lives – which is exactly what business interests want.

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