PEOPLE FOR BLOG

Corporate Personhood Debunked (This Time)

It's not often these days when you can't get even one of the conservative Justices on the Supreme Court to ignore precedent, twist the facts, ignore logic, or do whatever else it takes to help Big Business consolidate the already substantial power it exercises over ordinary Americans. Today is such a day.

In FCC v. AT&T, the giant telecom corporation, backed by supportive amicus briefs from numerous corporate interests, argued that inanimate corporations have "personal privacy" for the purposes of the Freedom of Information Act (FOIA).

Several years ago, the FCC investigated alleged overcharges by AT&T. After the investigation, AT&T's competitors filed a FOIA request to get the FCC to release documents on what they had found. The FCC said it would not disclose confidential commercial information about AT&T, pursuant to a specific exemption in the FOIA statute. However, the company argued that certain additional material would cause the company embarrassment and therefore fell into a separate statutory FOIA exemption allowing government agencies not to disclose material compiled for law enforcement purposes that would "constitute an unwarranted invasion of personal privacy."

The Third Circuit Court of Appeals had ruled for AT&T, holding that FOIA's statutory language "unambiguously" indicates that a corporation may have a personal privacy interest within the meaning of this FOIA exemption. The court said that: (1) FOIA defines "person" to include a corporation; and (2) the term "personal" is derived from the word "person" and is simply the adjectival form of the word.

Aside from leading to a bizarre definition of "personal," Big Business's idea of corporate personhood would significantly weaken the ability of news organizations and government watchdogs to examine government records containing vital information about corporate behavior affecting public health and safety – records that would otherwise remain hidden from the American people.

Fortunately, this assertion of corporate personhood was too much even for the Corporate Court that gave us Citizens United. A unanimous Court noted that in common conversation, the term "personal" is often used as the opposite of "business-related." Moreover, a simple look at a dictionary suggests that the word "personal" does not relate to artificial entities like corporations.

The U.S. Chamber of Commerce submitted an amicus brief in support of AT&T. Its extremism has reached the point that not even one Justice on the Supreme Court was willing to accept its view. Keep that in mind the next time the Chamber purports to represent mainstream values as it seeks to weaken Americans' efforts to impose reasonable regulations on businesses and hold them accountable when they do wrong.

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Corporate-Funded American Crossroads Prepares for Massive Spending in 2012

The twin groups founded by GOP heavyweights Karl Rove and Ed Gillespie are readying to spend $120 million to influence the 2012 elections. As reported in Citizens Blindsided, American Crossroads and Crossroads GPS were handsomely funded by Wall Street and private equity moguls, energy interests, and companies owned by billionaire Republican donors. After raising a combined $71 million for the midterm elections, American Crossroads and Crossroads GPS intend to spend a whopping $120 million to beat President Obama and Democratic candidates for Congress. Brody Mullins of the Wall Street Journal reports:

Two conservative groups founded last year with the help of Republicans Karl Rove and Ed Gillespie have set a goal of raising $120 million in the effort to defeat President Barack Obama, win a GOP majority in the Senate and protect the party's grip on the House in the 2012 election.



In setting their new fund-raising goal, Crossroads officials say they spoke with nearly all of their major 2010 donors, numbering in the dozens. "They have told us they are sticking with us, and most of them have said they plan to come in at a significantly higher level," said Steven Law, the president of the two Republican groups. Mr. Law said he also has found new donors.

American Crossroads and Crossroads GPS were set up under two different sections of the law and follow slightly different rules. American Crossroads is a so-called 527 organization, which must disclose its donors, while Crossroads GPS is a 501(c)4 entity that doesn't have to make public its donors.



Leaders of the two Crossroads groups say they will focus on television advertising and other election activities, which could complement the Republican National Committee's focus on rallying Republican voters and funding state parties.

Campaign-finance rules give groups such as Crossroads an advantage over the RNC. Because political parties can't raise more than $30,000 from an individual, they must spend millions of dollars to raise money from thousands of donors.

Outside groups face no such caps, so they can raise larger amounts from fewer individuals, incurring smaller fund-raising expenses in the process. American Crossroads and Crossroads GPS disclosed in an annual report sent to donors this week that they spent 96% of the money raised on campaigns.

The RNC spent about 70% of its money for the 2010 campaign on fund raising and other overhead expenses.
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The Story of Citizens United

The Story of Stuff Project has made a new video telling the story of Citizens United v. FEC. Take a look:

For more information on the influence that corporate spending had in the 2010 elections, read PFAW's report, Citizens Blindsided.

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Updates from the Front Lines of Wisconsin

Below you will see live Facebook updates from State Rep. Kelda Roys of Wisconsin, a member of People For the American Way Foundation's Young Elected Officials Network. She has been repeatedly denied entry to the state Capitol as a result of the protests against Gov. Walker's attempt to obliterate Wisconsin's public employee unions under the guise of fiscal reform.

UPDATE:

Check out Rep. Roys' coverage of the protests: 

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"Hide/Seek" and the Future of Fighting Censorship

Watching "A Fire in My Belly"

The National Portrait Gallery’s “Hide/Seek” exhibit closed last month, but the debate surrounding it is far from over.

On Feb. 17, People For’s president, Michael Keegan joined People For board member Ron Feldman and NYU law professor Amy Adler at Feldman’s gallery to discuss “Hide/Seek” and the right-wing outcry that led to a work of art being removed from the exhibit.

The discussion began with a viewing of a four-minute version of David Wojnarowicz’s “A Fire in My Belly,” which was removed from the exhibit after Religious Right leaders and Republicans in Congress deemed it, in the words of House Majority Leader Eric Cantor, “an obvious attempt to offend Christians during the Christmas season.”

Adler recalled the last time the Religious Right took aim at Wojnarowicz: in the early 1990’s, the American Family Association included edited images of the artist’s work in mailings meant to provoke anger against National Endowment for the Arts spending. Wojnarowicz sued the AFA for copyright violations, and became a symbol of fighting back against right-wing censorship efforts.

Don Wildmon, the head of the AFA at the time, “chose [Wojnarowicz] as a symbol because there is something very powerful about his work,” said Adler. “Ironically, his continuing vulnerability to censorship becomes a testament to the greatness of his art…his art seems to continually provoke and that says something of his greatness.”

Keegan spoke of the National Portrait Gallery’s decision to host the potentially controversial exhibit in the first place. “What the Smithsonian did was wonderful, and we and other groups were very happy that they decided to host the exhibit and celebrate gays and lesbians as part of the American experience,” he said.

When Smithsonian Secretary Wayne Clough decided to remove the Wojnarowicz work from the exhibit in response to an outcry from far-right leaders like the Catholic League’s Bill Donohue, People For called on the museum to correct its mistake and put the work back, and then called on Secretary Clough to resign his post. Neither effort succeeded, but the outcry among arts groups and proponents of free speech was strong.

“It wasn’t a victory in terms of putting the piece back and getting Clough out,” said Keegan, “but it was a victory in terms of drawing attention to censorship and starting the discussion.”

Feldman, who has been a leader in the battles over arts funding and freedom of expression for decades, said, “I think it’s the best we’ve ever done in one of these cases.” Although the Religious Right succeeded in getting a work it didn’t like removed from the exhibit, he said, “they had no traction.” Instead, he argued, the controversy spurred discussion of censorship, the AIDS crisis, and Wojnarowicz’s life and work: “We won in the sense that people were talking about David.”

Feldman argued that the art world was successful in fighting back against the Religious Right’s attacks by defining the works in question. “They attack the subject without actually having to deal with the meaning of the artwork,” he said, “The art world fought back with definitions."

Adler, Feldman, and Keegan

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Report from Madison: Standing Up (in the Snow) for Wisconsin's Workers

By Dave Kreisman

Over the last 13 days, neither rain, nor sleet, nor snow, nor cold has been able to stop the tens of thousands of public employees, their families and allies in Wisconsin’s fight to protect the rights of the middle class and working families.

Democracy, while flourishing in the halls of the Capitol and outside in the streets, was crushed in the Assembly chambers Friday morning at 1am, when after over 60 hours of debate, Speaker Pro Tem Bill Kramer (R-Waukesha) opened the roll and closed it within 15 seconds, allowing only 13 of the 38 Democratic Assembly Representatives the opportunity to cast their vote. The floor immediately erupted with Democratic members rushing the line of Republicans filing out of the chamber chanting “Shame! Shame! Shame!”

As Republicans filed out of the building, Democratic members greeted the hundreds of supporters in the rotunda who have been camping out in solidarity for over a week.

On Saturday over 75,000 people filled the lawn of the Capitol here in Madison, listening as Peter Yarrow of Peter, Paul and Mary, Bradley Whitford along with fellow actors Gabrielle Carteris and Robert Newman and U.S. Airways Pilot Jeff Skiles, the co-pilot who helped safely “land” a passenger plane on the Hudson River in 2009 spoke about their own unions and encouraged the masses to carry on “one more day” with Peter Yarrow assuring the crowd that “the eyes of the world are upon you.”

As has been the case at the end of each day of protests, nothing (not even snow and 14 degree weather) can stop the will of those standing in solidarity with our brothers and sisters in labor.

Dave Kreisman is coordinating People For the American Way's support for workers' rights in Wisconsin.

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Wisconsin after Citizens United

In the Huffington Post today, People For President Michael Keegan looks at what happens after corporations get unlimited influence in elections. In Wisconsin, big corporate funders not only have elected officials willing to unpopular and anti-populist policies, but also have instant access to decision makers:

The story of the year since Citizens United v. FEC may be perfectly crystallized in the fight that Wisconsin Gov. Scott Walker is waging against his state's public employee unions. Organizations like Americans for Prosperity spent millions of dollars in 2010 running misleading ads bashing health care reform, progressives, immigrants, and American Muslims in order to elect politicians who would stand up for the interests of big business. Now those interests are working hard, and spending a little extra money, to make sure they collect on their investments.

The real story behind the protests in Wisconsin has little to do, as Gov. Walker would have you believe, with a state-level push for fiscal responsibility. It has everything to do with the changing dynamics of money and influence in national politics. Pro-corporate politicians have never liked the power wielded by unionized workers. Last year, in Citizens United v. FEC, the Supreme Court handed them the tools do to something about it, paving the way for a wave of corporate money that helped to sweep pro-corporate politicians into power in November. Citizens United also increased the power of labor unions, but union spending was still no match for money pouring into elections from corporate interests. As Rachel Maddow has pointed out, of the top 10 outside spenders in the 2010 elections, 7 were right-wing groups and 3 were labor unions. Gov. Walker's attempt to obliterate Wisconsin's public employee unions, if it succeeds, could be the first of many attempts across the country to permanently wipe out what are the strongest political opponents of the newly empowered corporate force in American politics.

Read the whole thing here.
 

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Stoking Fear with Silence: Broun Apologizes, but When Will Republican Officials Stop Condoning Lies?

Last Friday, Rep. Paul Broun of Georgia was at a town hall meeting when a constituent asked him, “Who will shoot Obama?” Rather than confronting the call to violence, Broun—who has his own history of incendiary remarks— laughed it off, and answered, “The thing is, I know there’s a lot of frustration with this president… Hopefully, we’ll elect somebody that’s going to be a conservative.”

Today, after a national outcry made it impossible for him to sweep the incident under the table, Broun issued a full apology, saying, “I condemn all statements -- made in sincerity or jest -- that threaten or suggest the use of violence against the President of the United States or any other public official. Such rhetoric cannot and will not be tolerated.”

Broun was right to apologize, however belatedly. But his apology doesn’t erase what has become a troubling habit among many Republican members of Congress: choosing to ignore—and thereby tacitly embracing—lies and conspiracy theories about President Obama’s birth, religion, and love of country. Earlier this month, House Speaker John Boehner led the way when he refused to publically correct members of his base who believe that Obama is a secret Muslim who is illegally serving as president, stating, “I can’t tell Americans what to think.” Progressives called him out for his slippery response, but he ultimately got away with his convenient non-denial.

Broun himself has fed conspiracy theories about the president, saying that Democrats want to take over “all of society,” and even comparing the president to Hitler. Unfortunately, he’s hardly alone in his sometimes subtle and sometimes not-so-subtle embrace of extreme rhetoric.

Elected officials spend a lot of time talking with, and trying to be polite to, people who they may or may not agree with, and they certainly shouldn’t be held responsible for the views of every person who they happen to be in the room with. But elected officials do have the responsibility to operate honestly and responsibly—and that means correcting clear lies and confronting clear calls to violence.

Broun was rightly criticized for his failure to immediately condemn a call to assassinate the president. But when will he and his fellow members of Congress stop stoking the suspicion and fear that leads to such calls in the first place?

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Madison Police Chief: Walker’s Remarks on Protesters are “Unsettling and Troubling”

Madison, Wisconsin’s police chief isn’t so happy about Gov. Scott Walker’s joking around with a caller who he thought was billionaire Republican donor David Koch. In his conversation with a reporter pretending to be Koch, Walker said that he had “thought about” planting troublemakers in the crowds outside the state’s capital to discredit pro-union protesters. Police Chief Noble Wray told the Milwaukee Journal Sentinel:

“I would like to hear more of an explanation from Governor Walker as to what exactly was being considered, and to what degree it was discussed by his cabinet members. I find it very unsettling and troubling that anyone would consider creating safety risks for our citizens and law enforcement officers,” the chief said.

“Our department works hard dialoging with those who are exercising their First Amendment right, those from both sides of the issue, to make sure we are doing everything we can to ensure they can demonstrate safely. I am concerned that anyone would try to undermine these relationships. I have a responsibility to the community, and to the men and women of this department - who are working long hours protecting and serving this community – to find out more about what was being considered by state leaders.”

The police chief’s remarks come the day after a deputy attorney general in Indiana was fired for encouraging the use of violent force on the Wisconsin protesters.

h/t Think Progress
 

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Fox News: A Mirror Image of the Truth (Or, Reason #965,822 why Americans should not trust Fox News)

I just read Jed Lewison’s post on Daily Kos, “Fox flips poll results to falsely claim Americans support union-busting,” and my reaction is hardly one of shock.

Fox News’ graphics department consistently and persistently makes “mistakes” that show incorrect poll numbers, mislabel people’s party affiliation, and do other things to cast Fox’s favored side of a debate in a positive light and to smear its opposition.

A USA Today/Gallup poll shows a strong majority of Americans -- 61% -- saying that collective bargaining rights should NOT be taken away from workers. Today’s Fox & Friends morning show reported the exact opposite of those polling results, asserting instead -- falsely -- that according to the very same poll, 61% percent of Americans support union-busting.

It was not just the graphic (below) that peddled this lie. The show’s co-host Brian Kilmeade enthusiastically reiterated it.

Later in the broadcast, a correction was made and the actual results of the poll were noted. However, Fox “fessing up” to these mistakes doesn’t change the fact that their continuous snafus appear to be, at best, egregiously sloppy “journalism” and, at worst, intentional distortions meant to confuse, if not mislead, their audience.  

Fox’s “truth”:


The actual truth:


This is just further proof that lies are the currency of the realm at Fox News.

 

 

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Attorney General Eric Holder has announced that the Department of Justice will no longer defend Section 3 of the Defense of Marriage Act in court because it is unconstitutional. This is the provision prohibiting federal recognition of the marriages of gay or lesbian couples. As if that wasn't big enough news by itself, DoJ has concluded that legal classifications based on sexual orientation, like those based on race, sex, national origin, and religion, should be subject to a higher level of judicial scrutiny.

While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2010, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.

These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

This is the first recognition by the United States government that gays and lesbians have suffered a long history of discrimination so bad that it makes suspect any laws that treat people differently based on sexual orientation.  Moreover, that discrimination continues today and limits their political influence.

[T]he adoption of laws like those at issue in Romer v. Evans [prohibiting the state from passing civil rights protections for gay people] and Lawrence [laws making their private sexual conduct a crime], the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and "ability to attract the [favorable] attention of the lawmakers." Cleburne, 473 U.S. at 445. And while the enactment of the Matthew Shepard Act and pending repeal of Don't Ask, Don't Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged "political powerlessness." Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).

The Attorney General's announcement notes that it will continue to enforce DOMA until it is repealed by Congress or struck down definitively by the courts. In addition, it will work to ensure that Congress, should it wish, has the opportunity to defend the law in court since the Administration cannot in good conscience do so. (This would presumably avoid a situation like the one in California, where the state refused to pursue an appeal of the district court ruling against Proposition 8, leaving in doubt whether anyone has standing to do so.)

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Scott Walker's Revealing Chat with 'David Koch'

When a reporter from the Buffalo Beast called Wisconsin Governor Scott Walker and pretended to be billionaire industrialist and GOP bankroller David Koch, he spoke to the inaccessible governor for 20 minutes about his plans to wipe out public employee’s collective bargaining rights. A spokesman for the governor dismissed the importance of the conversation, “The governor takes many calls everyday,” but clearly the tapes reveal that Walker and ‘Koch’ were plotting strategy to “crush” labor unions and compel Democratic State Senators to return to the capital. Walker said he is willing to “talk, not negotiate” with Wisconsin Democrats, “they’ll have to back down.” Walker told ‘Koch’ “I have a slugger with my name on it” and “I’ve got layoff notices ready” for public employees:

Koch: [Laughs] Well, I tell you what, Scott: once you crush these bastards I’ll fly you out to Cali and really show you a good time.

Walker: All right, that would be outstanding. Thanks for all the support…it’s all about getting our freedoms back…

Read a partial transcript here, or listen to parts 1 and 2 of the audio:

 

 

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GOP’s Corporate Backers Intent on Busting Unions, Not Solving Budget Problems

In both Wisconsin and Ohio, Republican governors are attempting to rush through legislation that would devastate workers’ rights that would in reality do little to help close their states’ budget shortfalls. Behind their proposals to strip public employees of their collective bargaining rights is actually a political power play to diminish the voice of organized labor in American politics, a move sponsored by corporate interest groups.

Wisconsin Governor Scott Walker’s desire to eliminate collective bargaining has more to do with political baiting than sound fiscal policy.

For example, Walker specifically exempts the four public employee unions that endorsed his gubernatorial bid in his plan to eliminate collective bargaining. Labor law professor Paul Secunda of Marquette University called it “the worst type of favoritism there could be.” And despite his claim to be a fiscal hawk, the Governor pushed through costly corporate giveaways that jeopardized the state’s balanced budget and rejected a Republican’s compromise bill that would permit only a temporary curb on collective bargaining while preserve unions’ financial concessions.

History shows that states that stripped their public employees’ collective bargaining rights did nothing to solve their fiscal problems. Policy Matters Ohio notes that while Indiana, Kentucky, and Missouri recently eliminated public workers’ bargaining rights, “the budget shortfalls of these states in 2010 ranged from 10.6 percent of general revenue fund (Indiana) to 14.5 percent (Kentucky) to 22.7 percent (Missouri), mirroring the fiscal crisis of states across the nation.”

Rather than solve the budget problems, doing away with a key right of workers only advances the agenda of the corporate interests funding Republican campaigns.

Jonathan Salant of Bloomberg looked into the ties between virulently anti-labor corporations like Koch Industries and Wal-Mart and the radical GOP proposals in Wisconsin and Ohio:

Koch, a closely held energy and chemical company based in Wichita, Kansas, is controlled by the billionaire brothers David and Charles Koch. Along with other corporations, Koch Industries has often opposed organized labor on regulation and free trade, Holman said. Now they see a chance to cripple unions in the name of balancing budgets, he said.

The $1.2 million in Koch support for Republican governors includes $1.1 million given to the Republican Governors Association, which spent more than $3.4 million in support of Walker, according to Common Cause, a Washington-based advocacy group that opposes the governor’s proposal.

In addition, Koch gave $43,000 directly to Walker, his single largest corporate source; $11,000 to the Wisconsin Republican party; $22,000 to Kasich; and $34,000 to the Ohio Republicans.

Koch also supported the 2008 campaign of Indiana’s Daniels, according to the National Institute on Money in State Politics. The Republican Governors Association, which received $25,000 from Koch, was the biggest source of campaign cash for Daniels, institute records show.

In addition, Americans for Prosperity spent $1.2 million in support of Republican candidates for Congress last year, Federal Election Commission records show. Koch Industries’ federal political action committee contributed $1.3 million to candidates for the 2010 elections, 90 percent of it to Republicans, according to the Center for Responsive Politics.

Wal-Mart Stores Inc., the Bentonville, Arkansas, subject of a campaign by the United Food and Commercial Workers Union, also contributed to the campaigns of Walker and Daniels, and donated more than $340,000 to the Republican Governors Association for the 2010 elections, according to the Internal Revenue Service and the National Institute on Money in State Politics.
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A Third Judge Upholds the Healthcare Law

Another federal district judge has found the healthcare reform law constitutional. Judge Gladys Kessler in the District of Columbia becomes the third federal judge to uphold the law. As the New York Times reports:

The judge suggested in her 64-page opinion that not buying insurance was an active choice that had clear effects on the marketplace by burdening other payers with the cost of uncompensated medical care.

"Because of this cost-shifting effect," she wrote, "the individual decision to forgo health insurance, when considered in the aggregate, leads to substantially higher insurance premiums for those other individuals who do obtain coverage."

Judge Kessler observed that the basic argument against the law's constitutionality "ignores reality."

As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress's power. [internal citation omitted] However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not "acting," especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.

Perhaps that is why many of those on the right screaming most loudly that the law is unconstitutional were expressing the exact opposite opinion before the corporate-funded Tea Party arose, with its bizarre version of the United States Constitution seemingly written for We the Corporations, rather than We the People. After all, the individual mandate was a Republican idea and originally championed by many of those who now scream that it is an unconstitutional usurpation of power by the federal government. For instance, Senators Orrin Hatch and Charles Grassley co-sponsored legislation during the Clinton Administration that featured an individual mandate. As recently as June 2009, Sen. Grassley expressed his belief that there was a bipartisan consensus for individual mandates in the health care legislation. Both have completely flip-flopped on the issue.

Whatever this debate is about, it certainly isn't constitutional principle. Pretending otherwise is, to use Judge Kessler's words, ignoring reality.

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Bruesewitz v. Wyeth: As Sotomayor Comes Out Strong Against Pro-Corporate Judicial Activism, Scalia May Have Met His Match

There is something wearily predictable about Justice Scalia’s straitjacket reinterpretation of the National Childhood Vaccine Injury Act of 1986 (NCVIA) to eliminate the possibility of injured families suing manufacturers for design defects in vaccines. Justice Scalia brings his trademark sleight-of-hand to the task of explaining why the law does not provide for citizens what it obviously does provide and offers his well-developed rhetorical polish and high-minded sarcasm as a way to assure everyone that there is no reasonable alternative to his vigorous rewrite of the law in the interest of corporate immunity. Ah, another federal law, another judicial gloss for the corporations: business-as-usual on the Roberts Court.

What is startling and refreshing about this decision is that Justice Scalia has finally met his match in Justice Sonia Sotomayor, who comes out swinging hard in her powerful dissenting opinion against this aggressive pro-corporate judicial activism and impressionistic rewrite of the statute at hand. It seems that Justice Sotomayor is finding her voice defending popular legislation and democratic rights against the finger-painting and cut-and-paste rewrites of legislation that have become the specialty of free-wheeling conservative Justices.

Consider the numerous hard and effective punches Justice Sotomayor’s throws back at Justice Scalia here, quoting Webster’s Third New International Dictionary, the “plain text and structure” of the statute, and the essential canons of statutory construction, to show who the real “judicial activists” are:

She starts off by blowing the whistle on Justice Scalia’s substitution of his political views for those of Congress: “In holding that the . . . Act pre-empts all design defect claims for injuries stemming from vaccines covered under the Act, the Court imposes its bare policy preference over the considered judgment of Congress.”

After a masterful explanation of the Act and why it permits causes of action related to design defects, Justice Sotomayor writes: “In contrast to the interpretation . . . set forth above, the majority’s interpretation does considerable violence to the statutory text, misconstrues the legislative history, and draws the wrong conclusions from the structure of the Vaccine Act . . .”

And, to leave no doubt about what has just taken place to rob the Bruesewitz family--whose daughter suffered more than 100 seizures after being vaccinated with the DTP vaccine made by Lederle Laboratories--of its fair day in court, she concludes that “whatever the merits of the majority’s policy preference, the decision to bar all design defect claims against vaccine manufacturers is one that Congress must make, not this Court.”

It’s good to know that Justice Sotomayor at least has woken up to the fact that we are headed at a high speed right back into a Lochner-era jurisprudence where conservative Justices work overtime to undo progressive legislation and substitute their own authoritarian judgments for democratic decision-making. The combination of this judicial assault on popularly enacted statutes with the decision in the Citizens United case to arm private corporations with political campaign spending rights under the First Amendment makes for a pretty scary polity and economy. We need more judges and Justices like Justice Sotomayor to stand up for democracy and the rule of law.

Jamie Raskin is a Maryland state senator, constitutional law professor at American University's Washington College of Law, and Senior Fellow at People For the American Way.

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