While Mitt Romney and his running mate, Congressman Paul Ryan, plan a frontal assault in Congress on Medicare and other entitlement programs, Romney's Supreme Court nominees would surely accelerate the wide-ranging and ongoing attack in the Roberts Court on the rights of middle-class consumers, workers, voters, patients and shareholders. In a Romney Administration, we could look forward not just to 1% economics but to 1% justice as the conservative faction on the Court that gave us the Citizens United decision uses the Court to advance a partisan political agenda that injures the middle class.
The middle class has already taken a beating at the hands of this ruling conservative bloc on the Supreme Court. In the 2010-2011 Term alone, the conservative Justices repeatedly showed how they are willing to give corporate power its way on everything from class action lawsuits and civil procedure to adhesion contracts and securities law.
Consider that, in a single term, the Roberts Court:
- By a 5-4 vote destroyed a class certification in a lawsuit by one-and-a-half million women plaintiffs contending that they had suffered sex discrimination as Wal-Mart employees under a system of standardless pay and promotion decisions delegated to mostly male management teams all over America. (Wal-Mart Stores, Inc. v. Dukes, 2011)
- By a 5-4 vote overturned a ruling by the California Supreme Court that struck down mandatory arbitration clauses in mass consumer "adhesion contracts" where corporations with "superior bargaining power" carry out "a scheme to deliberately cheat large numbers of consumers out of individually small sums of money." (AT&T Mobility LLC v. Concepcion, 2011)
- By a 5-4 vote discarded, on federal preemption grounds, state law tort claims brought by two women under "failure to warn" laws after they ended up with severe neurological disorders from taking a drug whose known risks were badly understated by drug makers. (Pliva, Inc. v. Mensing, 2011)
- By a 6-3 vote invalidated, on First Amendment grounds (yes, you read that correctly), Vermont's Prescription Confidentiality Law, which provided that, unless physicians consented to the practice, pharmacies and health insurance companies could not sell to pharmaceutical companies for marketing purposes, any information about what drugs the physicians had been prescribing to their patients and for which diseases and conditions. (Sorrell v. IMS Health Inc., 2011)
- By a 5-4 vote determined, amazingly, that Janus Capital Management LLC (JCM), a mutual fund investment adviser, could not be found civilly liable under SEC Rule 10b-5 for lying to investors in its client's mutual funds' prospectuses because they were only the investment adviser working with the corporation, and not the corporation itself. (For more detailed analysis of these cases, see my report for affiliate PFAW Foundation, "The Citizens United Era: How the Supreme Court Continues to Put Business First." )
These awful bare-majority decisions demonstrate how much America's beleaguered middle class has at stake in the 2012 presidential election on who is going to be making nominations to the Supreme Court when Justices Ruth Bader Ginsburg and Stephen Breyer, both now in their seventies, step down. With the floodgates open on corporate and billionaire cash in our elections, it is impossible to have a fair fight in the political arena, but the judicial forum has become just as lopsided and hostile for the claims of the 99%. The replacement of Ginsburg and Breyer by Justices like Antonin Scalia, Clarence Thomas, John Roberts, Samuel Alito or Anthony Kennedy would not only reinforce and build upon the terrible decisions already made, it would turn every Court term for years to come into open season on the middle class. This would be a crushing blow -- for a decade or more -- to people outside the privileged CEO class.
But make no mistake: Mitt Romney is doubling down on right-wing law and right-wing economics. His hand-picked constitutional advisor -- the outrageous Robert Bork -- personifies both. As a judge on the U.S. Circuit Court of Appeals for the D.C. Circuit, Bork in nearly every divided case sided not with corporations against government regulators but with government regulators against consumers, workers, environmentalists and victims of corporate misconduct. He almost singlehandedly drove anti-trust policy to the Right, as a Yale Law professor, by denying the original economic and social purposes of anti-trust law and fostering sympathy towards vertical agreements, price discrimination and other predatory and monopolistic business practices. (For my detailed analysis of Robert Bork's political and legal career, see my PFAW Report, "Borking America: What Robert Bork Will Mean for the Supreme Court and American Justice.")
The jurists picked by Romney and Bork (whom Romney publicly wishes were already on the Court) would continue to wage the Republican Party's war on Congress' authority to legislate under the Commerce Clause. Conservatives have invalidated the Gun-Free School Zones Act and chunks of the Violence Against Women Act as unlawful applications of the Commerce power and also found, in the Affordable Care Act decision, that the power to regulate commerce does not include the power to "create" it, a strange and unprecedented ruling. Despite the fact that an expansive Commerce Clause power has been a central feature of American jurisprudence for two centuries, conservative jurists, mimicking their forebears during the New Deal, are eager to dismantle this body of precedent in order to roll back progressive legislation.
Everyone knows that the Supreme Court will be the locus of struggle over reproductive rights, voting rights and civil liberties, but it is important to remember that the fate of America's struggling middle class is also intertwined with the direction of the Supreme Court. While the nation is focused on the regressive economic policies favored by Romney and his running mate, it is a good moment to reflect on how the Supreme Court itself is implicated in the GOP's fight to ensure the continuing expansion of corporate power and the merciless assault on the American middle class.