Senator Al Franken’s questioning included a reference to the recent decision in Rent-A-Center v. Jackson, which was particularly well explained. He applauded Gen. Kagan’s comment from yesterday, where she said that the Court should provide equal access to everyone. However, arbitration means a case doesn’t go to court, and in Rent-A-Center the Roberts Court effectively decided that, in certain cases, the person who decides whether arbitration is appropriate is . . . the arbiter.
These disputes often pit large corporations against individuals, and arbitration proceedings almost always benefit these companies, by keeping costs down and avoiding costly attorneys’ fees. Not to mention that corporations often keep private arbitrators in business – it’s pretty clear that it’s in an arbitrator’s best interest to rule in favor of a corporation, rather than an individual, to keep that money coming in.
Applause to Sen. Franken for acknowledging, very eloquently, the pro-business bent of the Supreme Court.
In the case, RNC v. FEC, the RNC and several affiliate groups argued political parties should be allowed to raise and spend unlimited "soft" money contributions for purposes other than influencing national elections.
The RNC, the CA GOP and the San Diego Co. GOP had claimed they should be allowed to raise the money for redistricting, non-federal state elections and grassroots advocacy. A 3-judge panel in DC Circuit Court ruled unanimously against the RNC earlier this year. Only 3 members of the Supreme Court wanted to hear the case; 4 members must approve for the Court to accept a case.
The Court’s decision today not to take the case – with Scalia, Thomas and Kennedy on the other side - is a slim victory for the American people, already harmed by the harsh reality of the Roberts Court’s pro-corporation bent. We should temper our happiness, however, given the fact that a similar case is already pending in another circuit court, and pro-corporation groups are energized about its prospects.
Meanwhile, the U.S. Court of Appeals for the Fifth Circuit recently heard Cao v. FEC May 25. This case is a similar challenge to party restrictions, questioning the very low coordination limits for political parties and congressional candidates.
Yesterday, the Supreme Court held that the Public Company Accounting Oversight Board’s mechanism for removing its officers violated the constitution. Formed by the Sarbanes-Oxley Act, in response to the Enron scandal, the PCAOB has been challenged since its inception. Today’s ruling is another signal from the Roberts Court that the rights of corporations are more important than the rights of individuals. The Court ruled that since the PCAOB’s members are appointed by the Securities and Exchange Commission, and not removable by the President except for cause, such an arrangement violated the Constitution’s separation of powers. According to the Wall Street Journal:
Congress had given the five-member board, a not-for-profit corporation, broad regulatory authority over accounting firms that audit publicly traded companies. . . .
Roberts said the structure of the accounting board violated constitutional separation-of-powers principles because it was too difficult for the president to remove board members.
The majority did not invalidate PCAOB completely, finding that the offending provision was severable from the other parts of the statute. But as Breyer’s dissent points out, the Court’s ruling “threatens to disrupt severely the fair and efficient administration of the laws” because the decision struck down protection for members from removal for political reasons and could be expanded to apply to other government officers.
This decision – which as noted by Justice Breyer poses a serious threat to the functioning of the government and the board - is just another that can be added to the long list of pro-business decisions made by the Roberts Court. By further complicating the PCAOB, the Supreme Court is tacitly supporting corporations, rather than protecting the public from predatory practices.
Democratic Senators used the opportunity of Elena Kagan’s Supreme Court confirmation hearings today focus attention on nine people who were not in the room. The Senators called the Roberts Court out for some of its more outrageous decisions as they began to reframe the debate on the role of the Court and the Constitution. Central to the discussion was the Court’s decision in Citizens United v. FEC, in which it overturned a century of settled law to allow corporations to spend unlimited amounts of money to influence elections.
Russ Feingold of Wisconsin, was one of the chief designers of the campaign finance rules that the Supreme Court knocked down in Citizens United. He said:
[W]hen a decision like the one handed down earlier this year by a 5-4 vote in the Citizens United case uproots longstanding precedent and undermines our democratic system, the public’s confidence in the Court can’t help but be shaken. I was very disappointed in that decision, and in the Court for reaching out to change the landscape of election law in a drastic and wholly unnecessary way. By acting in such an extreme and unjustified manner, the Court badly damaged its own integrity. By elevating the rights of corporations over the rights of people, the Court damaged our democracy.
Only last week, the Rent-A-Center decision concluded that an employee who challenges as unconscionable an arbitration demand must have that challenge decided by the arbitrator. And the Citizens United decision -- yet another 5-4 decision -- created a constitutional right for corporations to spend unlimited money in American elections, opening our democratic system to a massive new threat of corruption and corporate control. There is an unmistakable pattern. For all the talk of umpires and balls and strikes at the Supreme Court, the strike zone for corporations gets better every day.
Ted Kaufman of Delaware told Kagan, “I plan to spend the bulk of my time asking you about the Court’s business cases, based on my concern about its apparent bias.”
The Court’s decision last fall in the Citizens United case, which several of my colleagues have mentioned, is the latest example of the Court’s pro-corporate bent. The majority opinion in that case should put the nail in the coffin of claims that “judicial activism” is a sin committed by judges of only one political ideology.
What makes the Citizens United decision particularly troubling is that it is at odds with what some of the Court’s most recently confirmed members said during their confirmation hearings. We heard a great deal then about their deep respect for existing precedent. Now, however, that respect seems to vanish whenever it interferes with a desired pro-business outcome.
Now, you’ve heard a lot about this decision already today, but I want to come at it from a slightly different angle. There is no doubt: the Roberts Court’s disregard for a century of federal law—and decades of the Supreme Court’s own rulings—is wrong. It’s shocking. And it’s torn a gaping hole in our election laws.
So of course I’m worried about how Citizens United is going to change our elections.
But I am more worried about how this decision is going to affect our communities—and our ability to run those communities without a permission slip from big business.
Citizens United isn’t just about election law. It isn’t just about campaign finance.
It’s about seat belts. It’s about clean air and clean water. It’s about energy policy and the rights of workers and investors. It’s about health care. It’s about our ability to pass laws that protect the American people even if it hurts the corporate bottom line.
As Justice Stevens said, it’s about our “need to prevent corporations from undermining self-government.
Sen. John Cornyn was waxing indignant a few minutes ago about what he calls the “activist vision” of certain judicial nominees.
He helpfully defined his terms:
“This activist vision takes the power from the people to make the law and change the law and gives it to the judiciary.”
Cornyn was no doubt shocked, then, by the Rehnquist Court’s decision in Bush v. Gore, in which it called off the counting of votes in a presidential election. Or by the Roberts Court’s decision in Citizens United v. FEC, in which it limited the power of democratically elected bodies to make rules about who spends money in elections.
It must be difficult for Cornyn to see judges appointed by presidents of his own party fall into that kind of activism.
The GOP Senators are echoing its same tired themes, characterizing Kagan as a political lawyer and suggesting that she would engage in “results-oriented judging.”
Though predictable, the hypocrisy is nonetheless astounding. These are the same senators who accepted Roberts’ “balls and strikes” song and dance with a wink wink and have done nothing to address – let alone denounce – the Roberts Court’s decision in Citizens United: the most results-oriented decision in decades. As Senator Feingold correctly stated in his statement, in that decision, the Roberts Court reached out to change the landscape of election law in the most unnecessary and extreme way and elevated the rights of corporations over that of ordinary citizens.
Republican Senators need to prove their real opposition to results-oriented judging and do something to fix Citizens United.
I want to flag a speech that Al Franken made on the Senate floor yesterday about the Supreme Court’s decision this week in Rent-A-Center v. Jackson. The legal issues in question were complicated, to say the least, but the impact of the Court’s decision on individual Americans is simple and clear. This excerpt is a little long, but it’s worth going to the Congressional Record and reading the whole thing. Franken explains:
On one side of the courtroom in this case was Rent-A-Center, a corporation that runs over 3,000 furniture and electronics rent-to-own stores across North America, with 21,000 employees and hundreds of millions of dollars in annual profits. On the other side stood Antonio Jackson, an African-American account manager in Nevada who sought to bring a civil rights claim against his employer. Jackson claims that Rent-A-Center repeatedly passed him over for promotions and promoted non-African-American employees with less experience.
Although Jackson signed an employment contract agreeing to arbitrate all employment claims, he also knew the contract was unfair, so he challenged it in court. But yesterday the Supreme Court sided with Rent-A-Center, ruling that an arbitrator, not a court, should decide whether an arbitration clause is valid. Let me say that again. The arbitrator gets to decide whether an arbitration clause is valid. Let me repeat that. The arbitrator gets to decide whether the arbitration clause is valid. That is just one step away from letting the corporation itself decide whether a contract is fair.
In doing so, the Supreme Court made it even harder for ordinary people to protect their rights at work. Justice Stevens, not surprisingly, wrote the dissent. As he did in Gross, Stevens notes that the Supreme Court, yet again, decided this case along lines ``neither briefed by the parties nor relied upon by the Court of Appeals.'' In other words, the Supreme Court went out of its way to close those bronze doors--and keep them closed. Clearly, this is a ruling that Congress needs to fix, and I look forward to working with my colleagues to do so.
Sometimes it is easy to forget that the Supreme Court matters to average people--to our neighbors and our kids. Some have tried to convince us that Supreme Court rulings only matter if you want to burn a flag or sell pornography or commit some horrendous crime. But as Jamie Leigh Jones and Antonio Jackson show us, the Supreme Court is about much more than that. It is about whether you have a right to a workplace where you won't get raped and whether you can defend those rights in court before a jury afterwards. It is about whether corporations will continue to have inordinate power to control your life with their armies of lawyers and their contracts filled with fine print. It is about whether they can force you to sign away your rights in an unfair employment contract so you never see the inside of a courtroom. It is, quite frankly, about the kind of society we want to live in.
Next week, the Judiciary Committee will hold hearings on the nomination of Elena Kagan to the U.S. Supreme Court. Those hearings provide a good opportunity for us to examine the legacy of the Roberts Court and talk about what it would mean to have a Court that instead cares about hard-working Americans.
Cases like this one often fly under the radar because the legal issues they deal with are hard to boil down to a soundbite or even a paragraph (I couldn’t make heads or tails of this initial SCOTUSblog summary of the case, much less Scalia’s opinion…which is why it’s great to have a legal staff around). But this is the kind of case that is the bread and butter of the Supreme Court’s work—questions of contracts and business deals and real estate that aren’t as easy to grasp and explosive as abortion and marriage and school prayer, but still make a very real difference in all of our lives. And that’s the kind of case that the Roberts Court has consistently been deciding on the side of powerful interests like Rent-A-Center over people like Antonio Jackson.
In yet another decision highlighting the Roberts Court's tendency to favor corporations over individual citizens, the Supreme Court on Monday made it more difficult for employees and consumers challenging their contracts to seek justice in court.
In Rent-A-Center v. Jackson, Antonio Jackson filed suit in a Nevada federal district court against his employer, Rent-A-Center, claiming that he had suffered racial discrimination and retaliation. Rent-A-Center tried to dismiss the lawsuit and force Jackson to move the dispute to arbitration, as was required by Jackson’s employment contract. The district court agreed with the company, but the Ninth Circuit court reversed, holding that when a person opposing arbitration claims that he or she could not have meaningfully consented to the agreement, the question of whether the original contract was fair must be decided by a court.
In a 5-4 opinion written by Justice Scalia, the Supreme Court overturned the Ninth Circuit's ruling, saying that Mr. Jackson failed to specifically challenge the arbitration provision in the agreement that requires challenges to the validity of the entire agreement to also be decided by an arbitrator. Previously, if an employee challenged certain aspects of a contract that included a binding arbitration clause but not necessarily the arbitration clause itself, the dispute would go to the arbitrators. However, the Court's decision expanded upon that to hold that even if an employee argues that the entire contract – including the arbitration clause – was unconscionable and therefore unenforceable, that person is still denied access to the courts unless he specifically and separately challenged the arbitration clause. In other words, arguing that the entire contract is illegitimate is not enough.
Treated as contracts, arbitration clauses waive one’s rights to go to court, meaning that any disputes must instead be settled through private arbitration. Often built into the fine print of a contract, these clauses are very common in the consumer context and usually there is little choice but to sign or not sign the contract. Most people at some point or another will become bound to an agreement with an arbitration clause, perhaps as part of a cell phone contract, a health insurance plan, or an employment contract. Although they are ostensibly for the benefit of both parties, they are primarily drafted to protect companies from litigation, as it is often too expensive for a claimant to even initiate the arbitration proceedings, much less pay the arbitrator’s hourly fees. In a telling signal of what a majority of the Court today thinks about these practical obstacles for ordinary Americans, Justice Scalia, in oral arguments, dismissed people who sign arbitration agreements as “stupid.”
Forced arbitration is an increasing problem as these clauses become standard parts of everyday contracts, but they are particularly troubling in civil rights cases such as this one. Mr. Jackson’s claim that his employer discriminated against him based on his race was brought under section 1981 of the Civil Rights Acts – legislation that was passed specifically to ensure that victims of such discrimination would have access to the federal courts. Instead, because Mr. Jackson signed an employment agreement - an agreement that he had little choice but to sign if he wanted the job - he is now precluded from asserting a violation of those rights and seeking justice in court.
As confirmed in Justice Stevens’ dissent, neither party even asked the Court for such a heightened standard of pleading, showing how once again, the Roberts Court is going out of its way to protect corporations and prevent real citizens - workers and consumers - from being able to access the federal courts.
In the wake of the Citizens United decision, the Supreme Court may choose to determine whether corporations have additional rights to free speech under the First Amendment. On June 24th, justices will meet to decide whether to hear a group of cases the government has brought against Big Tobacco, and the court will announce its decision the following Monday, the first day of Elena Kagan’s confirmation hearings.. At issue are a host of First Amendment issues, namely a corporation’s right to make assertions that may be fraudulent, in the interest of trying to influence public policy. To say the least, the cases are complicated. According to a lawyer representing Big Tobacco,
“Some law clerk at the Supreme Court is probably pulling his hair out as we speak,” said Jones Day partner Michael Carvin, who represents R.J. Reynolds Tobacco Company and Brown & Williamson Holdings, Inc. before the Supreme Court. “It's like a jigsaw puzzle.”
These cases demonstrate the potentially far reaching effects of the Court’s radical decision in Citizens United, which first recognized a First Amendment right to speech for corporations in the form of independent expenditures on elections. Now, corporations are seeking even more free speech protections.
“Tobacco company briefs cite the Citizens United decision for the proposition that they too deserve First Amendment protection for statements they made about the health effects of tobacco, statements that helped form the basis of the government suit under the Racketeer Influenced and Corrupt Organizations (RICO) law. In many of the tobacco company briefs, the First Amendment argument is the leading issue.”
The tobacco companies are responding to the DC Circuit’s finding that Big Tobacco’s advertising that claimed smoking was not harmful violated RICO. In contrast, documents presented to the court confirm that Philip Morris knew cigarettes were harmful, and released the advertisements in spite of this information.
The government presented evidence from the 1950s and continuing through the following decades demonstrating that the Defendant manufacturers were aware—increasingly so as they conducted more research—that smoking causes disease, including lung cancer. Evidence at trial revealed that at the same time Defendants were disseminating advertisements, publications, and public statements denying any adverse health effects of smoking and promoting their “open question” strategy of sowing doubt, they internally acknowledged as fact that smoking causes disease and other health hazards.
An added complication to these cases is that Elena Kagan, if confirmed as a Supreme Court justice will likely have to recuse herself from deliberations, because she was Solicitor General in February, when the United States filed its petition for the Supreme Court to hear one of the cases.
The cases, depending on how many the court chooses to accept, will likely turn on a test of equitable balance between the government’s interest in preventing fraud, and a corporation’s interest in defending itself.
“This is an enormously powerful tool for the government,” said Carvin. “If you knock out corporations from public debate, that's pretty frightening stuff … The Washington Legal Foundation and the Chamber of Commerce of the United States have also filed briefs emphasizing the First Amendment issue among others. But Crystal asserts that “you don't have a First Amendment right to commit fraud.” Carvin replies that “yes, you can stop someone from saying that his cereal stops cancer,” but the kind of statements at issue in the tobacco cases amount to “classic public policy speech” that deserve First Amendment protection.
Given the likely absence of Kagan on the bench, and the recent pro-business history of the Roberts Court, it’s fair to assume that corporations will find themselves with even more powers under the First Amendment. It is a truly scary notion for the average American, and something that further highlights the damage Citizens United will have on the rights of individuals in our democracy.
Last week at the America’s Future Now! Conference, People For’s Marge Baker participated in a panel called "Changing Citizens United and Fixing the Supreme Court." The panelists explained the negative impact of the Roberts Court’s corporate bias, the Citizens United decision, and the influence of big businesses on our elections. But don’t worry, they also outlined all the things we can do about it: legislate change, fix the courts, and, most importantly, work towards amending the Constitution.
The Constitutional Accountability Center has just released a statistical study of the current Supreme Court’s pro-corporate voting patterns. And guess what? The numbers back the trend that’s anecdotally hard to miss.
CAC’s statistical study tests empirically the idea that the conservatives on the Roberts Court tend to side with corporate interests. Our study examined every opinion released by the Roberts Court since Justice Samuel Alito began participating in decisions, and in which the U.S. Chamber of Commerce was either a party or an amicus curiae — a universe of 53 cases. This study reveals an overall success rate for the Chamber of 64% (34 victories in 53 cases), and a success rate of 71% in cases decided by a narrow (five-Justice) majority. The Court’s conservatives (Chief Justice Roberts and Justices Antonin Scalia, Samuel Alito, Clarence Thomas, and Anthony Kennedy) tend to vote together in their support for the Chamber, while the Court’s moderate/liberal bloc (including former Justice David Souter, who was on the Court for most of these rulings) was more centrist, casting only 41% of its votes in favor of the Chamber.
These data strongly support the proposition that there is a strong ideological component to the Justices’ rulings in business cases, with the Court’s conservatives frequently adopting the Chamber’s position. In one particularly startling finding, Justice Alito, since joining the Court, has never cast a vote against the Chamber of Commerce’s position in a closely divided case. This statistical evidence supports the charge by President Obama and Chairman Leahy that the Court’s conservative majority has a disturbing pro-corporate tilt, and this reality should provide an important frame for General Kagan’s upcoming confirmation hearing.
Jeff Sessions is at it again. In a statement following the release of tens of thousands of pages of documents related to Supreme Court nominee Elena Kagan on Friday, Sessions concluded:
Kagan’s memos unambiguously express a leftist philosophy and an approach to the law that seems more concerned with achieving a desired social result than fairly following the Constitution. Ms. Kagan has never been a judge, and only briefly practiced law—spending far more time as a liberal advocate than a legal practitioner.
Sessions, the top Republican on the Senate committee that will grill Kagan this summer, has apparently decided to stick to the blanket accusation of “judicial activism”—or, as it is now known, “outcomes-based” judging. The idea that conservative judges read the Constitution while liberal judges pull ideas out of thin air was spectacularly disproved by the Roberts Court’s ruling in Citizens United v. FEC, and recently received a thorough takedown from former Justice David Souter. Yet Sessions continues to peddle nonsense about progressive appointees caring more about a “social result” than the Constitution.
And, by the way, when Sessions accuses Kagan of lacking judicial experience, he walks right into a well-documented double standard.
In a new piece for the Huffington Post, People For’s Michael B. Keegan argues that the confirmation process for Elena Kagan provides progressives with the perfect opportunity to take back a debate that the Right has dominated for far too long:
As Slate's Dahlia Lithwick has pointed out, the Republican message machine has managed to convince America at large that only two kinds of Justices exist: rigorous conservatives who scrupulously apply the original intent of the Constitution, and carefree liberals who flaunt the law to rule for whichever party their big, soft hearts prefer. It's a myth, but it didn't spring up from nowhere. It's the direct result of a concerted effort pushed by conservative ideologues like Ed Meese and supported by Ronald Reagan, George Bush, and eventually the entire GOP machine.
For decades, this campaign has paid enormous dividends to the Right, with ultra conservative judges frustrating progressive goals and allowing elected conservatives to trample our Constitution. But over the last few years, a series of decisions by the Roberts Court have exposed its flaws and given progressives an opening to take back the conversation.
The Supreme Court’s conservative majority ruled today that suspects being interrogated can only invoke their right to be silent if they say so explicitly—they can’t just remain silent. Justice Sonia Sotomayor, in a dissenting opinion, called the ruling a "substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona has long provided.” The Los Angeles Times explains:
In the past, the court has said the "burden rests on the government" to show that a crime suspect has "knowingly and intelligently waived" his rights.
But in a 5-4 decision Tuesday, the court said the suspect had the duty to invoke his rights. If he failed to do so, his later words can be used to convict him, the justices said.
The ruling comes in a case involving a murder suspect who, though read his Miranda rights, never said he would waive them. After three hours of interrogation, he offered a few monosyllabic responses that implicated him in the crime. The Supreme Court’s majority, in an opinion by Justice Anthony Kennedy, went beyond the case in question to hold that suspects, rather than having to explicitly agree to be interrogated, have to explicitly invoke their Miranda rights in order to halt questioning.
Sotomayor pointed out that requiring a suspect to speak in order to remain silent doesn’t really make sense:
Justice Sonia Sotomayor, the court's newest member, wrote a strongly worded dissent for the court's liberals, saying the majority's decision "turns Miranda upside down."
"Criminal suspects must now unambiguously invoke their right to remain silent — which counterintuitively, requires them to speak," she said. "At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded."
She also criticized the majority for going beyond the decision necessary for the specific case in order to make new and broader rules:
If, in the Court’s view, the Michigan court did not unreasonably apply our Miranda precedents in denying Thompkins relief, it should simply say so and reverse the Sixth Circuit’s judgment on that ground. “It is a fundamental rule of judicial restraint . . . that this Court will not reach constitutional questions in advance of the necessity of deciding them.” Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 157 (1984).
It’s a perfect example of how the Roberts majority, while displaying remarkable ambivalence to the practical implications of its rulings, isn’t just calling “balls and strikes”—it’s going to bat for its own unprecedented agenda.
As BP begins a risky attempt to stem its still-leaking oil rig in the Gulf of Mexico, and oil starts to lap against the shores of the Gulf Coast, lawsuits against the oil giant have begun. The devastating oil spill has already surpassed the size of the 1989 Exxon Valdez disaster, and the litigation that follows it is sure to be just as contentious and lengthy. Two years ago, 19 years after the Valdez spill, the tens of thousands of victims of the disaster saw their case end up before the Supreme Court…and the Court gave Exxon Mobil a huge handout. While the facts this time are different and the legal issues won’t be exactly the same, if their case ends up before the high court, victims of the BP spill will have a legitimate reason to worry –the Roberts Court has displayed a clear willingness to go out of its way to keep individual citizens from holding big oil accountable.
In 1989, an Exxon oil tanker carrying over a million barrels of crude oil crashed off the coast of Alaska, spilling at least ten million gallons of oil into the Prince William Sound. The spill destroyed wildlife habitats and the livelihoods of fishermen up and down the Northwest coast. Those affected by the spill entered into years of litigation to try to recover from Exxon some of what they had lost. In 1994, a jury awarded the 32,677 plaintiffs in the case $5 billion in punitive damages. An appeals court judge halved the amount to $2.5 billion.
[E]ven this pared-down judgment was way too much for Justices Roberts, Kennedy, Thomas, Souter and Scalia. In 2008, this bloc reduced the punitive damage award from $2.5 billion to $507.5 million. Indeed, the only thing that stopped them from deleting the award altogether was that they were one vote short of being able to find that a corporation is not responsible for the reckless acts of its own managers acting in the scope of their employment.
What the 5-justice majority found, over the objections of dissenting liberal justices who accused them of legislating from the bench, was that it would impose in maritime tort cases a 1-1 ratio between compensatory and punitive damages—a formula found nowhere in the statute and essentially pulled out of a hat made by a big corporation. In dissent, Justice Stevens chastised the majority for interpreting the "congressional choice not to limit the availability of punitive damages under maritime law" as "an invitation to make policy judgments on the basis of evidence in the public domain that Congress is better able to evaluate than is this Court."
But Exxon, which amazingly ended up making money on the spill because of the resulting increase in oil prices, got its way with a corporate-leaning Court and ended up paying punitive damages equal to a day or two of company profits.
Not surprisingly, the lawsuits from those who are losing their livelihoods have begun. As of May 21, more than 130 had been filed.
Lawsuits against BP will no doubt involve millions, and probably billions of dollars in both compensatory and punitive damages. While compensatory damages are essential to helping victims recover from a disaster of this size, punitive damages serve to dissuade the company and others like it from acting recklessly in the future. The Roberts Court’s willingness to invent a rule capping punitive damages against Exxon doesn’t bode well for anyone hoping to hold BP accountable for this disaster and to make sure it doesn’t happen again.
The Court has a responsibility to ensure that ordinary people get treated fairly, even when pitted against big corporations—but the current Supreme Court has made it clear that we can’t always count on that.
This disaster is a tragic reminder of why we need Justices who won’t favor the interests of the powerful over the rights of ordinary citizens.
Jeff Shesol, author of the fascinating Supreme Power: Franklin Roosevelt vs. The Supreme Court, has some advice for President Obama in a new blog post for the American Constitution Society. Shesol argues that Obama can learn a thing or two from Roosevelt’s struggles with an “activist” Supreme Court that was overturning key legislative initiatives to protect individual rights and his success in shifting the frame of the public’s debate on the Court and the Constitution.
It's a paradox: we've got a former constitutional law professor as president, but he's had far less to say than his critics (and some of his supporters) about the relevance of the Constitution to key questions of national policy. No doubt he's got plenty to say on the subject. No doubt he's unwilling to cede the argument to Republicans mouthing pieties about "the plain language of the Constitution." So what's holding the professor back?
Understandably, his focus now is the confirmation of Elena Kagan, and that goal might not be served by starting a debate with the self-styled defenders of the Constitution. But as Senator Cornyn said last year, not incorrectly, "each Supreme Court nomination is a time for national conversation and reflection on the role of the Supreme Court." And by keeping mostly mum on the matter, President Obama is missing an important opportunity to "take the country to school," as Felix Frankfurter advised President Roosevelt to do in the mid-1930s. Frankfurter urged FDR to launch a campaign of "quiet education" about the Court's proper role and the ways in which ideologically driven conservative justices were overstepping it.
As Shesol points out, for decades conservatives have dominated the debate over the meaning of the Supreme Court and the Constitution. But in recent months, their talking points have been noticeably loosing credibility. The Roberts Court’s far-reaching decision in Citizens United—in which it went out of its way to upend 100 years of settled law to give corporations the same rights as citizens to influence elections— angered Americans across the political spectrum, and soundly debunked the myth of “judicial activism” as a liberal trait. And the Republican National Committee’s recent attempt to smear Elena Kagan for questioning the perfection of the original Constitution spectacularly backfired when the flawsin their argumentbecame clear.
Americans are clearly ready to embrace a view of the Supreme Court and the Constitution that does not fit neatly into flawed baseball-themed talking points. The debate over Kagan’s nomination provides an opportunity to have that conversation.
People For and a coalition of progressive groups will run a full page ad in the Washington Post next week, criticizing the Supreme Court’s increasing deference to corporate interests. The ad, which pictures judicial robes embroidered with the logos of large corporations and asks “Is the Supreme Court Corporate America’s newest subsidiary?,” was released today.
The corporate sympathies of the current Supreme Court majority—displayed in cases like Citizens United v. FEC and Ledbetter v. Goodyear Tire Company—have shaken Americans across the political spectrum. Last month, a People For report documented the Court’s 10-year pro-corporate trend, and the emergence of a “corporate bloc” on the Court.
The ad lays out some of the most startling rulings of the Roberts Court:
The United States Supreme Court was founded to protect the American people, not American big business.
Yet recent rulings have allowed corporations to get away with paying women less than men, discriminating against the rights of older workers, dodging liability for faulty medical devices, ducking the Clean Water Act and avoid paying damages for the Exxon Valdez oil spill.
Most alarmingly, the Court has also just declared that corporations have the same rights as people, with unlimited rights to pour money into electing corporate candidates who will protect their interests.
A poll commissioned by the groups that released the ad—People For, Alliance for Justice, and MoveOn.org—found that the majority of Americans agree that the Supreme Court favors big corporations over individuals, and want a new Justice who will not be part of that trend.
In the New York Times today, Adam Liptak predicts that in the wake of Citizens United, the Supreme Court will reconsider, maybe as early as this summer, the constitutionality of limits on “soft money”—unlimited contributions to political parties. The lawyer who won the Citizens United case appealed last month a lower court decision upholding the ban on soft money donations.
Liptak explains the difficulty of keeping the soft money ban in the wake of the Supreme Court’s decision to give corporations essentially free reign to spend on elections:
Ever since the Supreme Court’s 1976 decision in Buckley v. Valeo, election law has relied on what many people think is an artificial distinction. The government may regulate contributions from individuals to politicians, Buckley said, but it cannot stop those same people from spending money independently to help elect those same politicians.
Why not? Contributions directly to politicians can give rise to corruption or its appearance, the court said, but independent spending is free speech. A $2,500 contribution to a politician is illegal; a $25 million independent ad campaign to elect the same politician is not.
Citizens United extended this logic to corporations. Corporate contributions to candidates are still banned, but corporations may now spend freely in candidate elections.
The distinction between contributions and spending has not been popular in the legal academy.
“Buckley is like a rotten tree,” Burt Neuborne, a law professor at New York University, wrote in 1997. “Give it a good, hard push and, like a rotten tree, Buckley will keel over. The only question is in which direction.”
The return of soft money to elections would not be a trivial matter. In the 2000 election cycle, before the McCain-Feingold bill banned the practice, soft money donations to party committees totaled over $500 million—about a sixth of the total amount spent on federal campaigns that year.
It will be interesting to see if the Roberts Court, given its track record on issues involving large bank accounts, is willing to take us back there.
In his column yesterday, E.J. Dionne laid out exactly the right prescription for liberals and Democrats in the upcoming confirmation battle over the Supreme Court seat being vacated by Justice John Paul Stevens.
We don't know who the nominee is yet, but we know the dangers posed by the Roberts Court and what the right-wing ideologues are doing to our country via their agenda-driven interpretations and reinterpretations of the law and the Constitution.
Citizens United is an extreme case of a general tendency: Conservative judges are regularly invoking their alleged fealty to the "original" intentions of the Founders as a battering ram against attempts to limit the power of large corporations. Such entities were not even in the imaginations of those who wrote the Constitution. To claim to know what the Founders would have made of Exxon Mobil or Goldman Sachs or PepsiCo is an exercise in arrogance.
What liberals forgot during the years when their side dominated the judiciary is that for much of our history, the courts have played a conservative role. But today's conservatives have not forgotten this legacy. Their goal is to overturn the last 70 years of judicial understandings and bring us back to a time when courts voided minimum-wage laws and all manner of other economic regulations.
Several days earlier, Joe Conason wrote a great piece discussing the politics of Supreme Court confirmation battles and why Democrats and progressives should be eager to have a constitutional debate about the role of the Court and how the Right's definition of "constitutional" really means the dangerous upending of the traditional understanding of the Constitution which has served America well.
What exactly do they mean by "constitutional"? On the increasingly powerful fringes of the Republican right, a category that includes some Tea Party activists, the Constitution is interpreted as prohibiting every social and political advance since before the Civil War. They would outlaw the Federal Reserve System, the progressive income tax, Social Security, Medicare, environmental protection, consumer regulation and every other important federal initiative of the past century.
Targets of the "constitutional conservatives" would certainly include civil rights legislation that guarantees equal protection under law to minorities and women...
When the Supreme Court decided this year to open the electoral process to floods of money from corporate interests, it provoked a vehement public backlash. But Citizens United v. FEC was just the tip of the iceberg of a decade of rulings—some high-profile and some less noticed— made by a Court that has been disturbingly deferential to corporate interests. A new People For the American Way Foundation report outlines the rise of the corporate court under Chief Justice Rehnquist and the new life it has taken on in the Roberts court.
Americans across the spectrum have been startled and appalled by the Citizens United decision, which will "open the floodgates for special interests—including foreign companies—to spend without limit in our elections," as President Obama said in his 2010 State of the Union Address. According to a Washington Post nationwide poll, more than 80% of the American people reject the Court's conclusion that a business corporation is a member of the political community entitled to the same free speech rights as citizens.
Yet, the Court's watershed ruling is the logical expression of an activist pro-corporatist jurisprudence that has been bubbling up for many decades on the Court but has gained tremendous momentum over the last generation. Since the Rehnquist Court, there have been at least five justices—and sometimes more—who tilt hard to the right when it comes to a direct showdown between corporate power and the public interest. During the Roberts Court, this trend has continued and intensified. Although there is still some fluidity among the players, it is reasonable to think of a reliable "corporate bloc" as having emerged on the Court.