A Supreme Court for the rich?

Posted on September 23, 2020

One of the top issues of the day, of course, is a replacement for Supreme Court Justice Ruth Bader Ginsburg. When progressives talk about the urgency of the moment, we usually focus on the issue of abortion. But that’s not the most persuasive story to tell.

The modern Supreme Court began during Franklin Roosevelt’s administration. During Roosevelt’s first term, the Republican-dominated court struck down important New Deal programs. At the beginning of his second term in 1937, Roosevelt announced the Judicial Procedures Reform Act which would have allowed the President to increase the size of the Supreme Court from nine to as many as 15 Justices. This has come down through history as Roosevelt’s “court-packing plan.” Just weeks after this announcement, one of the conservative justices switched sides to uphold the State of Washington’s minimum wage law by a 5-to-4 vote. The reversal is known as “the switch in time that saved the nine.”

Gradually the Court became more progressive, especially with the appointments of William O. Douglas by Roosevelt, Earl Warren and William Brennan by Eisenhower, and Thurgood Marshall by Johnson. The Court became important advocates for the rights of individuals, especially those in poverty.

The progressive court ended when Richard Nixon was able to appoint a new conservative chief justice, Warren Burger, and three associate justices, Lewis Powell, William Rehnquist and Harry Blackmun. Only Blackmun could be considered a moderate. The primary “accomplishment” of the Supreme Court since Nixon has been to expand the rights of wealthy individuals and corporations at the expense of everyone else.

Here are just a few key examples:

  • The Supreme Court struck down limits on political campaign contributions and expenditures. The 1976 case of Buckley v. Valeo decreed for the first time that money is First Amendment-protected speech, allowing the wealthy to spend unlimited amounts on politics. And in 2010, the Court ruled in Citizens United v. FEC that corporations have the same right as rich individuals to spend unlimited amounts of money on campaigns. These rulings have given the wealthy more power and influence over government than ever before. Further, these decisions are absurd – money is not speech and corporations are not people.
  • The Court has been very hostile to labor rights, a trend which reached a landmark with the 2018 case Janus v. AFSCME. Again using the “money is speech” argument, the Court struck down “fair share” labor agreements for public employees where workers who benefit from a union contract are required to pay some of the costs. This ruling showed, once again, that the conservatives on the Court are perfectly willing to overturn established law to serve their ideological ends, in this matter reversing 1977’s Abood v. Detroit Board of Education.
  • Over the last few decades, the Court has gutted the ability to bring class action lawsuits against large corporations. The 2001 ruling in Circuit City v. Adams forced workers into arbitration if they tried to sue. The 2011 decision in AT&T v. Concepcion threw out a lawsuit by individuals who were overcharged on phone charges, making it almost impossible to stop overcharges. The 2019 case of Lamps Plus v. Varela blocked a plaintiff from class action remedies despite the fact that Lamps Plus negligently disclosed private information to a hacker.
  • In 2000, as you know, the Supreme Court overturned the Florida Supreme Court in Bush v. Gore, halting a recount of votes and handing the presidential election to George W. Bush. This ruling was entirely partisan, the conservative argument was unconscionable, and obviously it led to eight years of benefits for the rich.
  • The Court has already made one indefensible ruling on Obamacare, preventing nationwide Medicaid coverage. The current case of California v. Texas could break the ACA. Health care for all hangs in the balance.

As for the issue of abortion, no doubt a court with another right-wing justice will overturn Roe v. Wade. That is awful, but talking about it is unlikely to change any voters’ minds about candidates in this election. Pocketbook issues have a better chance of getting through.