Showing posts with label republican supreme court. Show all posts
Showing posts with label republican supreme court. Show all posts

Wednesday, July 10, 2013

Roberts Court: "Corporate America's Employees of the Month"

Bloomberg Businessweek paid the Roberts Supreme Court the, uh, compliment of naming them The Supreme Court: Corporate America's Employees of the Monthin a 06/27/2013 article by Paul Barrett, also known for his notably industry-apologetic reporting on the firearms industry and the NRA.

This is how they featured it in the print edition:


According to Barrett, it is the Roberts Court's willingness to block consumer lawsuits that earned them the dubious honorific label:

The 2012-13 high court session, which concluded June 26, saw the justices continue a multiyear pattern of interpreting regulations and statutes in a manner that insulates corporations from liability risks. In other words, the Supreme Court under Chief Justice John Roberts has narrowed the avenues available to employees and consumers seeking to take their grievances before a judge.

Evident in the court's decisions is a deep-seated hostility to ambitious lawsuits aggregating the claims of hundreds or thousands of plaintiffs. "The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only," Justice Antonin Scalia wrote in a 5-4 ruling in March that shielded Comcast (CMCSA) from a monopolization suit seeking $875 million on behalf of 2 million cable subscribers. Scalia, whose tendency to toss verbal Molotov cocktails sometimes limits his ability to build majorities on the high court, has emerged as the determined architect of a strikingly restrictive class-action jurisprudence, an area the justices historically had left to the lower courts. [my emphasis]
This should embarrass the Supreme Court. But most of them surely take it as a compliment.

But when it comes to slavish devotion to the Money Power (as the Jacksonians called it), it's hard to top their notorious "judicial activist" decision in Citizen's United: Court green-lights corporate election spending 01/22/2010:



I think the Roberts Court is going for the Corporate Employees Of The Century title.

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Friday, July 01, 2011

Is "false consciousness" meaningful in politics? And what does Clarence Thomas have to do with it?

This article from former British Labour Member of Parliament David Marquand, Why the left is losing the crisis New Statesman 11/25/2010, has some valuable observation about how the embrace of neoliberalism (the "free market" Washington Consensus so beloved of the International Monetary Fund for developing nations in the 1990s) has placed center-left parties in Europe in the position of losing ground in a serious way to the right. And this in the midst of a depression, in which the right is advocating Herbert Hoover economics, known as the "Treasury view" in Britain.

But somehow he felt the need to qualify his polemic against austerity economics by "punching a hippie," in the form of griping about the faults of Marxism:

The ancient Marxist myth of false consciousness dies hard on the left. It says that, if hitherto left voters swing to the right, it is because they have been led astray by racists or demagogues, or because they have been seduced by false promises, or both: in short, because they don't understand what their true interests are. Unfortunately for its purveyors, the myth does not stand up. There was plenty of false consciousness around, but its chief repositories were the leaders of the social-democratic left, not the voters who deserted them. The deserting voters sensed that the statist paradigm in which their erstwhile leaders were trapped was a busted flush: that, as the American political economist Charles Lindblom once put it, the central state consists of "strong thumbs and no fingers" and those strong thumbs were no longer enough to induce lasting change.
I have no idea what that last metaphor about the thumbs and the fingers and the "central state" is supposed to mean.

But the argument that "the left" foolishly looks down on voters who don't agree with them as people who "don't understand what their true interests are" is a favorite theme of American conservatives. It's a stock feature of rightwing verbal populism. George Wallace in the 1960s sneered in his speeches against "pointy-headed intellectuals" and perfessers who ride bicycles. Sarah Palin and Michelle Bachmann regularly remind their fans of who the libruls and the "lamestream media" look down on the Real Americans.

There's also a highbrow version of the same argument popular among neoconservatives. I don't know that Christopher Lasch was ever considered a a neoconservative. But his version of the argument in introduction to his The True and Only Heaven: Progress and Its Critics (1991) makes a case with which neocons would feel comfortable. In the preceding pages, he has made it clear that he is discussing "the left" as everyone from self-identifying Marxists to Democratic Party liberals:

The left had no quarrel with the future, I discovered, but only with the backward, benighted, or simply misguided opponents of progress whose blind resistance might prevent the future from arriving on schedule. It was the belief in progress ... that explained the left's curious mixture of complacency and paranoia. Their confidence in being on the winning side of history made progressive people unbearably smug and superior, but they felt isolated and beleaguered in their own country, since it was so much less progressive than they were. After all, the political culture of the United States remained notoriously backward - no labor party, no socialist tradition, no great capital city like London or Paris, where politicians and civil servants mingled with artists and intellectuals and encountered advanced ideas in cafés and drawing rooms. In America, the divorce between politics and thought had always found geographical expression in the distance between Washington and New York; and the culture of Washington itself, for that matter, seemed light-years ahead of the vast hinterland beyond the Alleghenies - the land of the Yahoo, the John Birch Society, and the Ku Klux Klan. [my emphasis]
That's how you do a highbrow mocking of the pointy-headed perfessers riding bicycles.

This comes from the last years of Lasch's life and career. And by this time, he had clearly embraced some rightwing perspectives. As we see in that excerpt. And, like my puzzlement at Marchand's metaphor, it's hard for me to even guess what real-world entities might have some correspondence to those Lasch is mocking. "In America, the divorce between politics and thought had always found geographical expression in the distance between Washington and New York"? Say what? And for that matter, what the heck is a "drawing room," really? Have you ever known anyone who had a part of their house they called a "drawing room"?

Okay, that's my own little bit of mockery. But, honestly, looking at the political scene during the Reagan and the Old Man Bush Administrations, who is he talking about here? Walter Mondale? Michael Dukakis? Bill Clinton? Al Gore? Please. One would have to look very hard in The Nation or The Progressive to find articles that expressed such a viewpoint. It might be marginally easier to find in the New York Review of Books. But it certainly was not the attitide of the broad group he takes as "the left."

Here Lasch explicitly embraces on of the favorite themes of conservatives, segregationists - and also the now-defunct Democratic Leadership Council (DLC):

The conviction that most Americans remained politically incorrigible - ultranationalistic in foreign policy, racist in their dealings with blacks and other minorities, authoritarian in their attitudes toward women and children - helps to explain why liberals relied so heavily on the courts and the federal bureaucracy to engineer reforms that might have failed to command popular support if they had been openly debated. The great liberal victories - desegregation, affirmative action, legislative reapportionment, legalized abortion - were won largely in the courts, not in Congress, in the state legislatures, or at the polls. Instead of seeking to create a popular consensus behind these reforms, liberals pursued their objectives by indirect methods, fearing that popular attitudes remained unreconstructed. The trauma of McCarthyism, the long and bitter resistance to desegregation in the South, and the continued resistance to federal spending (unless it could be justified on military grounds) all seemed to confirm liberals in the belief that the ordinary American had never been a liberal and was unlikely to become one. [my emphasis]
Lasch was considered a serious intellectual, and I don't mean "Serious" in the contemporary sense of embracing Beltway Village conventional wisdom. But this stuff was downright tendentious. Liberals were very aware that only a minority of the US public self-identified in polls as "liberal." But, then as now, on major policy issues, clear majorities and pluralities poll as supporting liberal positions on policy issues.

Now, real live liberals and progressives today do make the argument that in some cases, notably abortion rights, that advocates have become complacent about mobilizing political support for their causes, in part because the legal rulings were favorable to the cause in question. Yes, Brown v Board of Education ruled that public school segregation was unconstitutional. But the Civil Right Acts of 1964 and the Voting Rights Act of 1965 were enacted by, uh, Congress. Lasch's argument is nothing but his version of the endless segregationist whine about the alleged tyranny of the courts.

That he was making this argument against "the left" in a book published in 1991 has an especially ironic sound today. The biggest judicial controversy of the Bush I Administration (1989-1993) was the nomination of Clarence Thomas to the Supreme Court. The federal courts have since become heavily dominated by Republicans. The Supreme Court decisions in Bush v. Gore (Rehnquist Court, 2000) and Citizen's United (Roberts Court, 2010) were blatantly partisan and anti-democratic, and rank with the Dred Scott and Plessy v. Ferguson decisions as some of the very worst in the entire Court's history.

Today's Republicans have no problem with using the federal courts for blatantly partisan and ideological purposes, enacting in reality a mirror-image of the false claims the segregationists always made against desegregation decisions. The Cheney-Bush Administration had all their Supreme Court nominees vetted through the crassly ideological and partisan Federalist Society. Clarence Thomas is currently receiving well-deserved criticism for his overtly partisan associations and the big money his wife takes from partisan conservative groups; she has herself been a prominent Tea Party activist. On Thomas' ethical challenges, see Mike McIntire, Friendship of Justice and Magnate Puts Focus on Ethics New York Times 06/18/2011; Digby's Today's Court is just another political player Hullabaloo 06/19/2011; and, Ian Millhiser, Clarence Thomas Decided Three Cases Where AEI Filed A Brief After AEI Gave Him A $15,000 Gift Think Progress 06/21/2011. Digby observes:

I think the Court sees itself as an explicitly political branch now and any attack on Thomas is done in that light. Bush vs Gore was a watershed --- the idea that the Court was above crass political considerations (even if it often wasn't) was fully abandoned and there's no going back. (Recall that Chief Justice Roberts worked on the Bush recount.)
To gripe about how "the left" relies too much on the courts to achieve their goals is a bad joke in today's judicial reality in the US.

Oh, and one of the three cases referenced in Ian Millhiser's piece is Parents Involved in Community Schools v. Seattle School District No. 1 (2007), a school desegregation case. Thomas filed a concurring opinion emphasizing what sounds like his opposition to the federal courts allowing any school desegregation plan that was anything but a one-time remedy for previous legally imposed (de jure) segregation in that school district. Justice Robert's opinion for the Court at the end cites Brown v. Board of Education as banning the recognition of race in a plan to alleviate actual (de facto) racial discrimination. The opinion didn't reverse Brown explicitly. It's safe to say it stood the Brown ruling on its head.

Justice Breyer, in a dissent joined by the other three dissenting Justices, said:

The plurality pays inadequate attention to this law, to past opinions’ rationales, their language, and the contexts in which they arise. As a result, it reverses course and reaches the wrong conclusion. In doing so, it distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools, it threatens to substitute for present calm a disruptive round of race-related litigation, and it undermines Brown's promise of integrated primary and secondary education that local communities have sought to make a reality. [my emphasis]
The ruling banned a desegregation plan that was adopted by the school district on its own initiative, not as a result of court orders. But remember, it's "the left" who wants to use the courts to impose their political views!

Justice Stevens filed his own separate dissent describing memorably the cynicism of the majority's reasoning:

There is a cruel irony in THE CHIEF JUSTICE'S reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955). The first sentence in the concluding paragraph of his opinion states: "Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin." Ante, at 40. This sentence reminds me of Anatole France's observation: "[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." THE CHIEF JUSTICE fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, THE CHIEF JUSTICE rewrites the history of one of this Court's most important decisions. Compare ante, at 39 ("history will be heard"), with Brewer v. Quarterman, 550 U. S. ___, ___ (2007) (slip op., at 11) (ROBERTS, C. J., dissenting) ("It is a familiar adage that history is written by the victors").
All this is a long way of saying that Marquand's argument about "the left" and "false consciousness" is a whopping red herring. Every political party, like every sales person in any business, tries to convince those to whom it's marketing itself that it better represents their interests than the alternative (voting for another party, not buying the product). In other words, it assumes that the skepticism or indecision of the targeted customer toward the party marketing itself in a political campaign is a form of "false consciousness," which the campaigner seeks to change.

In other words, in the context used by Marquand and by Lasch, the argument simply takes ordinary political persuasion and tries to paint it as elitist arrogance on the part of "the left." I don't know if there's any way for it to be meaningfully measured. But I'm guessing that the notion that people are too stupid too understand their own real interest is far more often expressed by the Tea Party types groups than by "the left." At least that's the only place I recall hearing it lately.

But in the context of electoral political activity, it's a silly play on the concept of the most elementary political marketing.

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Wednesday, January 27, 2010

Republican judicial activism in Citizens United

Law professor Dan Farber of UC-Berkeley notes of the Republican Supreme Court's decision in Citizens United that it represents a striking incidence of judicial activism (Of the corporations, by the corporations, and for the corporations?):

The Court’s decision in Citizens United was something of a foregone conclusion. Still, it was a bit breathtaking. The Court was obviously poised to strike down the latest Congressional restrictions on corporate political expenditures. But the Court went further and struck down even restrictions that had been upheld thirty years ago. Seldom has a majority been so eager to reach out, address a question that wasn’t presented by the parties and overrule a bevy of prior decisions. The term “judicial activism” is overused but seems entirely appropriate here.
I had to smile a bit at the professorial phrase "a bit breathtaking". That's little like "a little bit pregnant". Or the phrase that native German-speakers often use in English, "I'm freezing a little".

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Saturday, January 23, 2010

Activist Supreme Court gives corporations even more power to dominate politics

Among the many news reports on the Supreme Court's decision to open the floodgates even widen to corporate money in elections, this is a good one from the Los Angeles Times, Supreme Court OKs unlimited corporate spending on elections by David Savage 01/22/10. The LA Times editorial on the decision, The 1st Amendment and corporate campaigning 01/22/10, while supporting the Court's position on the narrow issue that was before it, explains that this was a piece of aggressive judicial activism that went far beyond the narrow scope of the case to reverse a century of Constitutional law. This was really a radical right decision.

President Obama addressed the issue in his weekly address on 01/23/09 01/23/2010, the White House transcript of which is grandly titled, President Obama Vows to Continue Standing Up to the Special Interests on Behalf of the American People. As they often do, many of the words sound right (my emphasis):

But this week, the United States Supreme Court handed a huge victory to the special interests and their lobbyists – and a powerful blow to our efforts to rein in corporate influence. This ruling strikes at our democracy itself. [my emphasis]
This ruling opens the floodgates for an unlimited amount of special interest money into our democracy. It gives the special interest lobbyists new leverage to spend millions on advertising to persuade elected officials to vote their way – or to punish those who don’t. That means that any public servant who has the courage to stand up to the special interests and stand up for the American people can find himself or herself under assault come election time. Even foreign corporations may now get into the act.

I can’t think of anything more devastating to the public interest. The last thing we need to do is hand more influence to the lobbyists in Washington, or more power to the special interests to tip the outcome of elections. [my emphasis]
But will he fight for real solutions? Sadly, he pleaded for a "bipartisan" solution, which has become for the Obama administration and the current Senate leadership at least an offer of preemptive surrender.

We currently have one Party, the Republicans, who are both strongly partisan and willing to fight for their goals. We have another Party, the Democrats, who are lukewarm partisan and not notably willing to fight for the goals that are most important to their Party's own base and to the majority of the people.

Sadly, the Party that is made up of fighting partisans has also become an authoritarian Party hostile to democracy and the rule. (See Bush v. Gore, the Cheney-Bush torture policy, to take two examples among many.)

It really is remarkable for the President of the United States to say of a Supreme Court decision:

This ruling strikes at our democracy itself.

I can’t think of anything more devastating to the public interest.

But those words at this particular moment in time remind me of what's been so gut-wrenching disappointing to even Democrats like me, who never viewed Obama as some kind of democratic messiah. His actions haven't matched up to the urgency of his words.

The plain meaning of those words is that our entire democratic and Constitutional system is at serious and grave risk as a result of the Supreme Court's ruling in Citizens United v. FEC. And this isn't some radio or FOX News demagogue saying this. It's the President of the United States and the head of the Democratic Party. Those words describe a danger that requires immediate remedies, now, this year, 2010, while the Democrats have a large majority in both Houses and the Presidency. Those words call for dragging or driving the Blue Dogs and the merely intimidated among the Democratic Members of Congress into acting.

But democracy and the rule of law is also under grave risk from the Cheney-Bush torture policy and massive domestic surveillance. And the Obama administration refuses to prosecute perpetrators from those programs and endorses much of the underlying legal defenses for both, which completely embracing the surveillance policy with the explicit approval of Congress.

So what is the President actually proposing on this new threat to democracy and the Constitution, this Court decision of which he "can’t think of anything more devastating to the public interest"? So far, something about on the same level of uselessness as a typical commission study: "When this ruling came down, I instructed my administration to get to work immediately with Members of Congress willing to fight for the American people to develop a forceful, bipartisan response to this decision."

Yeah, let's appoint at bipartisan commission to study the problem for a couple of years. Maybe Joe Lieberman and John McCain can co-chair it. Let's show bipartisan goodwill by putting Michelle Bachman and James Baker on the commission. They can study the problem for a couple of years and then deadlock along partisan lines. Historians chronicling the final years of American democracy will be able to consult the majority and minority reports of the commission as they draw the reasoned conclusion that the President was right: "This ruling strikes at our democracy itself."

There are some constructive things that can be done, none of them involving the intervention of the Bipartisan Holy Grail that the Democrats continue to invoke as their excuse for failing. Congress can require corporations to get approval from 99% of their stockholders, for instance, before spending shareholders' money on political campaigns. They could impose high disclosure requirements along the lines of, "This ad was authorized by Daddy Warbucks, CEO of Predator Bank, which stands to make billions of additional profit if Congress does what this ad advocates." They could restrict business activities by corporations that run political ads, or deny them government contracts. Not all of this would necessarily stand up to Republican Supreme Court review. But part of the way to fight these things is for the elected representatives in Congress to assert their legislative intent forcefully in restricting the ability of corporations to corrupt elections. Congress could even change the laws of incorporation to knock out the legal position, which was bad law from its beginnings in the 19th century, that corporations are legally equivalent to individuals, which is part of the basis of the Citizens United decision.

Since this ruling also reduces restraints on union political activity, this is yet another incentive for the Democrats to pass the Employee Free Choice Act to facilitate union organizing. This is a critical way to build up countervailing social power against corporate dominance.

There's also the Constitutional Amendment option but the Republicans will fight that tooth and nail, including with bundles of corporate political spending that the Court has now unleashed, so that's not a short-term solution.

Notable articles on the decision:

Jack Balkin, The Ghost of Campaign Expenditures Past Balkinization 01/23/09

Green Greenwald, a civil liberties hardliner, finds aspects of the decision to like but also declares himself "deeply ambivalent" on the ruling: What the Supreme Court got right Salon 01/22/10; and, Follow-up on the Citizens United case 01/23/10. Glenn underestimates how much this ruling can expand corporate domination of politics. He does make some interesting points about how the notion of corporations as persons figured into this case.

Heather Gerken, The Real Problem with Citizens United The American Prospect 01/22/10. She points out that the Citizens United ruling may have even broader implications for anti-corruption laws than just political advertising.

Greg Palast, The Supreme Court Just Handed Anyone, Including bin Laden or the Chinese Govt., Control of Our Democracy 01/22/10

Sahil Kapur, Grayson: Fight now or ‘kiss your country goodbye’ to Exxon, Wal-Mart Raw Story 01/22/10

Stephanie Mencimer, The Man Who Took Down Campaign Finance Reform Mother Jones 01/21/10

John Dean, A Supreme Victory for Special Interests TruthDig 01/21/10

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