I’m recording this just before the High Holy Day of Yom Kippur, the Jewish Day of Atonement and fasting. I’ve been asked to read a portion which begins “Justice, justice you shall pursue.” Even in Temple I can’t escape the Court. So here goes:
The rare period when the Court showed concern for public welfare ended in 1987 when Rehnquist took over and it keeps getting worse. Before that, the Court helped bring on the Civil War in Dred Scott v. Sanford,[1] and blocked state progressive legislation for decades before Franklin Roosevelt had the opportunity to nominate every one of the nine men on the Court by the time he left office. It was only from about 1937 to 1987 that it took segregation apart, and approved laws protecting working Americans and public health. The Court in that period was led by Chief Justices Hughes, Stone, Vinson, and Burger as well as Warren. But under Chief Justices Rehnquist and Roberts the Court has returned to its old tricks and once again sees its job as protecting the very people who have and use their power to take advantage of the great majority of us.
- The Trump majority has been dismissive toward women’s rights and health.[2]
- The Court reads federal law so that federal agencies have no right to control air pollution[3] despite the impact on public health.
- It denied government the right to stop people from carrying guns[4] despite the obvious risk to public safety – and despite excluding guns from their Court because of the equally obvious safety risk.
The Court’s decisions on our economic health are equally bad:
- It virtually disabled the antitrust laws so that consumers don’t get the benefits of competition.[5]
- It undermined state consumer protection law[6] and protects companies from liability for the damage they cause.[7]
- It undermines whistle-blowers,[8] workers and women’s rights to correct discrimination.[9]
- It undermined retirement benefits,[10] union finances[11] and union ability to protect working Americans.
In each area, the Court shifted financial benefits to management; and shifted risks and costs to the rest of us. The Court consistently opposes women, workers and public welfare rights and consistently favors management and the companies that appear before the courts.
Some argue that concessions to employees or the public are bad for business. Specific businesses can get an advantage by stiffing their employees or the public. But if business shrinks employee pay and benefits across the economy, everyone is selling to a smaller market and everyone loses. Injury to public health and welfare can also be destructive to wide swaths of the public.
Republicans argue for an absence of regulation. But that’s nonsense. In each case the Court enforces rules – the Court tells both parties who gets what and who gets nothing. The Court is part of government. It makes or enforces rules. There is no such thing as the absence of government or the absence of regulation. There are always rules – good rules and bad rules. This Court consistently chooses to decide against workers and for their bosses, against the public and for the companies.
They’re not following the law. Twisting the rules in favor of the big shots and against the vast majority of us well justifies packing the Court until it reads the law for the general welfare, protects the public and our country from those who would injure us. This is a See-no-Evil, Hear-no-Evil, and mess-everything-up court. The extremists and their Court have to be stopped.
[1] Dred Scott v. Sanford, 60 US 393 (1857).
[2] Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022).
[3] West Virginia et al. v. Environmental Protection Agency, 597 U.S. ___ (2022).
[4] New York State Rifle & Pistol Association, Inc., et al. v. Bruen, 597 U.S. ___ (2022).
[5] Bell Atl. Corp. v. Twombly,550 U.S. 544 (2007); Leegin Creative Leather Prods. v. PSKS, Inc., 551 U.S. 877, 881 (2007); Credit Suisse Sec. (USA) LLC v. Billing, 551 U.S. 264, 276 (2007); American Express Company v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013) and see id. at 2313 (Kagan, dissenting).
[6] Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006); AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011).
[7] Riegel v. Medtronic, Inc., 552 U.S. 312, 326-27 (2008); Bruesewitz v. Wyeth, 131 S. Ct. 1068 (2011); Pliva v. Mensing, 131 S. Ct. 2567 (2011); Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008); Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148 (2008); Janus Capital Group, Inc. v. First Derivative Traders, 131 S. Ct. 2296, 2302 (2011).
[8] Schindler Elevator Corp. v. United States ex rel. Kirk, 131 S. Ct. 1885 (2011).
[9] 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009); Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011); Ledbetter v. Goodyear Tire & Rubber Co. 550 U.S. 618 (2007); Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007).
[10] M&G Polymers USA, LLC v. Tackett, 135 S. Ct. 926, 928 (U.S. 2015).
[11] Harris v. Quinn, 134 S. Ct. 2618, 2620 (U.S. 2014); Knox v. SEIU, Local 1000, 132 S. Ct. 2277 (U.S. 2012); Unite Here Local 355 v. Mulhall, 134 S. Ct. 594, 594 (U.S. 2013).
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
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