Be prepared: Supreme Court to get more extreme

 

Bill Knight column for 10-15, 16 or 17, 2020

As Amy Coney Barrett appears before the Senate this week, we’re reminded that elections matter.

Donald Trump’s 2016’s victory let him appoint three Supreme Court justices – as well as “packing the court” by filling judiciary vacancies left open when Senate Majority Leader Mitch McConnell stonewalled President Obama’s appointments.

Americans might endure the GOP hypocrisy of rushing confirmation three weeks before voting (in 2016 – eight months before that election – the Senate wouldn’t consider Obama’s nominee), and accept Barrett’s arrival. But we better plan for a Right-wing Roberts Court.

Chief Justice John Roberts already is the second-most pro-business justice (after Samuel Alito) from 1946 to 2011, according to a study by Appellate Judge Richard Posner and law professors Lee Epstein and William Landes.

Roberts’ influence has shown in cases involving forced arbitration, campaign finance, voting rights, gerrymandering/redistricting, and workers sharing costs for union representation. After the latter case, “Janus” (which started with anti-union forces in Illinois), Justice Elena Kagan said there were no reasons for overruling the issue’s precedent, established in 1977 in “Abood.” She wrote, “The majority has overruled ‘Abood’ for no exceptional or special reason. It has overruled ‘Abood’ because it wanted to.”

Advocates for reversing precedents are often “originalists” who interpret the Constitution as they claim Founders intended, letting them upend whatever they can justify doesn’t fit the colonial point of view.

If originalism prevailed in the last century, discrimination would be legal, contraceptives illegal, poll taxes would prevent the poor from voting, and workers would be prohibited from unionizing. (Originalism arguably could apply the 2nd Amendment only to muskets, or limit citizenship to white, male property owners.)

Rutgers University law professor James Gray Pope told In These Times magazine that “the big-picture point here is that throughout the whole range of issues that affect the working class, the Supreme Court is going to be in a fundamentally reactionary posture.”

AFL-CIO president Richard Trumka said, “In John Roberts’s America, corporations have more rights than people. You can’t draft them. You can’t put them in jail. They have limited liability and, in many cases, don’t pay taxes. It is now easier to bust a union than form one. Too many politicians are choosing their constituents, not the other way around. Collective action and civil rights, the very foundations of a healthy democracy, are being whittled away.”

Similar decisions overturning precedents probably lie ahead if Barrett takes the open seat.

Unlike Ginsburg – a champion for the Affordable Care Act, workers’ rights, women’s rights, and the right to vote – Barrett also is an originalist.

Although Barrett is a Catholic (belonging to an unusual Catholic group, People of Praise, in which she considers herself a “handmaid” to a male hierarchy), she doesn’t have unified support from her Church.

Sister Simone Campbell, director of NETWORK lobby for Catholic social justice, said, “I know that Judge Barrett shares my faith, but her past words and actions prove that she does not hold all life to be sacred. President Trump appears to be courting the Catholic vote. As a Catholic Sister, let me be clear: Catholics will not be bought off by a predetermined vote against ‘Roe v. Wade.’ It is insulting to act as if my faith boils down to one issue. Catholics cannot support judges or politicians who blatantly ignore the breadth of Catholic Social Teaching on women’s rights, voting rights, immigrant’s rights, health care, environmental protections, and so much more.”

Registered Nurse Bonnie Castillo, director of National Nurses United, said Barrett’s “record on racial and age discrimination and immigration rights is equally troubling.”

Rebecca Dixon, director of the National Employment Law Project, added, “Judge Barrett has proven she puts the wealthy and powerful first, and [the] record shows that if confirmed, she would only further entrench the anti-worker, pro-corporation slant of this Supreme Court.”

So, as professor Pope said, “Politics are key,” conceding that “that’s an area that’s fraught right now with the gerrymandering opinion, the voter ID rulings, and Citizens United guaranteeing the right of money to skew the political process. All of those things are going to make it very difficult.”

However, he recalled the late 1800s and early 1900s (the “Lochner era,” for a case overturning New York’s law limiting a day’s work to 10 hours), when the Supreme Court frequently invalidated federal and state laws.

“Around the Lochner era, a lot of people were denied the right to vote, including not only African Americans in the South, but also poor whites in the South, and women,” Pope said. “So the democratic process was skewed then as well. Ultimately, what was crucial was mass resistance.”

We’re reminded, too, of Curtis Mayfield’s lyric: “People get ready. There’s a train comin’.”