By Richard Newman & Tom Lebert
The world is becoming increasingly driven by large corporations and those who would benefit from them as wealth inequality skyrockets and antitrust law is seldom used. The tort law system we celebrate at the American Museum of Tort Law has helped to protect the people from the wrongdoings of such corporations, but the rules of this system can change based on precedent from the nation’s highest court.
For this reason, the judicial philosophy and temperament of those person selected to serve as Justices of the Supreme Court is really important. Our president and senators have some degree of control over who shapes the legal system of this country through our courts. Through the confirmation process and through the legal history of individuals nominated to the courts, we can gather an idea of how these people will rule if confirmed.
On July 22, 2018, the New York Times’ Editorial Board responded to the nomination of Brett Kavanaugh through an editorial titled “Brett Kavanaugh Will Fit Right In at the Pro-Corporate Roberts Court,” which highlights an important issue for those who have concerns about the excessive concentration of corporate power, and undue deference to corporate rights.
Corporate interests haven’t had it so good at the Supreme Court in a long time.
Under Chief Justice John Roberts Jr. the court has given big business a leg up on workers, unions, consumers and the environment — and will do so even more aggressively if the Senate confirms Brett Kavanaugh, President Trump’s choice to replace Justice Anthony Kennedy.
Corporations won the power to spend unlimited amounts of money on political campaigns in the 2010 Citizens United decision. The owners of businesses have earned the right to cite their personal religious beliefs to deprive workers of reproductive health care. At the same time, the justices have made it harder for employees and customers to sue big businesses by allowing corporations to require mandatory arbitration clauses in contracts people are forced to sign if they want jobs or want to buy goods and services. The court has also made it easier for polluters to get away with poisoning the air and water. . .
Just last month, in a blow to public-sector unions with contracts covering nearly seven million workers, their 5-to-4 ruling dismissed a unanimous 40-year-old decision that state governments and unions had long relied on. In the recent case, Janus v. American Federation of State, County and Municipal Employees, the court held that government workers covered by union contracts do not have to pay fees for collective bargaining expenses if they are not members. The ruling does not directly involve businesses. But it will hurt all workers because benefits won by unions often establish benchmarks that help improve wages and working conditions even at companies without unions. . . .
The past few decades have seen the Supreme Court greatly expand corporate power, largely at the expense of worker and consumer protections. This persistent trend has left average Americans with fewer options to defend themselves against harmful corporate actions. As the Editorial Board explains, these decisions aren’t just by chance:
Over the years, conservative groups like the Federalist Society and the Heritage Foundation have worked to make sure that Republican presidents appoint judges and justices who are reliably pro-corporate. Partly as a result, the Roberts court has been much more adamant in opposing regulation and much more expansive in establishing corporate rights. Chief Justice Roberts and Justice Samuel Alito Jr., both appointed by President George W. Bush, are the most pro-corporate justices since 1946, according to the Epstein, Landes and Posner research.
It’s no accident that the Supreme Court has shifted in recent decades to support corporations. Party politics and private organizations have infiltrated the makeup of the Court and led to this degradation in protections against corporate wrongdoing.
While the Court has often had a majority of pro-corporate justices in the recent past, the margin has at times been thin. Brett Kavanaugh may change that.
Judge Kavanaugh, who serves on the United States Court of Appeals for the District of Columbia Circuit, fits neatly into the Roberts-Alito worldview.
In 2012, Judge Kavanaugh wrote an appeals court opinion striking down an Environmental Protection Agency rule that required upwind states to reduce power plant emissions that cause smog and soot pollution in downwind states, a decision that was later struck down by a 6-to-2 majority of the Supreme Court. And in 2016, he wrote an opinion that said the leadership structure of the Consumer Financial Protection Bureau was unconstitutional because Congress decided that the president could only fire its director for cause. The full appeals court reversed that portion of his decision in January. . .
Kavanaugh is a uniquely pro-corporate judge who would serve to not only continue, but strengthen the pattern of pro-corporate decisions we’ve seen from the Supreme Court. His past decisions are not to be taken lightly; we know what his thoughts are on the relationship between the law and corporations, and these beliefs must be considered by our senators when the time comes to vote on his confirmation. A vote for Kavanaugh may be a vote for fewer legal protections for workers and consumers and a signal to corporations that their immoral conduct is perfectly fine. As the New York Times puts it:
The court’s pro-corporate decisions are widening the chasm in power and wealth between the country’s elite and everybody else. And the Roberts court is also increasingly preventing lawmakers, regulators and the public from doing anything about that growing problem.
Will Kavanaugh be confirmed? Will he be as pro-conservative as prognosticators predict? Stay tuned. . .