Whitehouse on the Court

The clip by Senator Whitehouse that Daniel Becker posted here is excellent.  For those of you who prefer reading, this issue brief he wrote is also very good:

It turns out that Republican appointees to the Supreme Court have, with remarkable consistency, delivered rulings that advantage the big corporate and special interests that are, in turn, the political lifeblood of the Republican Party. Several of these decisions have been particularly flagrant and notorious: Citizens United v. FECShelby County v. Holder, and Janus v. AFCME. But there are many. Under Chief Justice Roberts’ tenure through the end of October Term 2017-2018, Republican appointees have delivered partisan rulings not three or four times, not even a dozen or two dozen times, but 73 times. Seventy-three decisions favored Republican interests, with no Democratic appointee joining the majority. On the way to this judicial romp, the “Roberts Five” were stunningly cavalier with any doctrine, precedent, or congressional finding that got in their way. . .

I then looked at the 78 cases to see which ones implicated interests associated with the Republican Party. These interests fall into four categories: (1) controlling the political process to benefit conservative candidates and policies; (2) protecting corporations from liability and letting polluters pollute; (3) restricting civil rights and condoning discrimination; and (4) advancing a far-right social agenda. Let’s review these.

First, political control: conservative interests seek to control the political process by giving their corporate, and often secret, big-money benefactors more freedom to spend on elections. This, in turn, helps them drown out opposing voices, manipulate political outcomes and set the agenda in Congress. For proof of this dynamic, look no further than how the Court’s decision in Citizens United proved the death knell for climate change legislation in Congress. Before that fateful decision, which lifted restrictions on corporate spending in candidate elections, Congress had held regular, bipartisan hearings and even votes on legislation to limit the carbon emissions causing climate change. But Citizens United allowed the fossil fuel industry to use its massive money advantage to strike at this bipartisan progress, and it struck hard. The fossil fuel industry set its political forces instantly to work, targeting pro-climate-action candidates, particularly Republicans. Outside spending in 2010’s congressional races increased by more than $200 million over the previous midterm’s levels—a nearly 450 percent increase.[7] Bipartisanship stopped dead.

Second, protection from courts and regulatory oversight: powerful corporate special interests can become accustomed to disproportionate sway in Congress, where they enjoy outsized influence through political spending and lobbying. With government regulators and in federal courtrooms, this type of influence should make no difference. Some regulators are not captured by the industries they oversee and use the power Congress has given them to protect public health and safety. In courtrooms, corporations may find themselves having to turn over documents that reveal corporate malfeasance. They may find themselves having to tell the truth. And they lose their influence advantage; they may even find themselves being treated equally with real people. In response to this corporate frustration, the Roberts Five have made it harder and harder for regulators and juries to hold corporations accountable.

Third, the Roberts Five are making it harder for people to protect their individual rights and civil liberties. In this group of cases, the conservatives reflect an elitist world view that corporations know best; that courts have no business remedying historical discrimination; that views and experiences outside the typically white, typically male, and typically Christian “mainstream” are not worthy of legal protection. Over and over, the Roberts Five have found ways to make it harder to fight age, gender, and race discrimination.

Finally, there are the “base” issues—abortion, guns, religion—that Republicans use to animate their voters. Republicans promise a Supreme Court that will undo reasonable restrictions on gun ownership and protections for women’s reproductive health, and they use this promise to drive turnout in elections. In this group of cases, the Roberts Five have invalidated federal and state laws, acting as a super-legislature to achieve by judicial fiat what Republicans cannot accomplish through the legislative process.

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