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Confirmation of Judge Kavanaugh Would Cement Corporate Capture Of The Supreme Court

In the early 20th century, the Supreme Court systematically gutted regulations to favor business and attack organized labor. Those dark days have returned.  ~~~ “A New Lochner Era” (6/29/18)

“The Fourteenth Amendment does not enact Mr. Herbert Spencer‘s Social Statics” ~~~ Justice Oliver Wendell Holmes dissent in Lochner

[Updates below]

During the US Senate confirmation of Judge Gorsuch, I wrote:

I’ve previously written about how President Trump’s Supreme Court nominee Neil Gorsuch’s views on administrative law would threaten foundational principles of the entire edifice of what has been attacked by Trump strategist Steven Bannon as the post New Deal “administrative state”. …

There is a real possibility that a Gorsuch influenced Supreme Court could severely dismantle the New Deal and all environmental protections via placing restrictions  on administrative regulatory agencies and making it easier for corporate interests to challenge and dismantle regulatory protections.

Make no mistake – Gorsuch’s views are radical and a serious threat to modern government.

If adopted by a conservative Supreme Court – they threaten the foundations of the New Deal and all federal environmental and and public health protections.

I had written:

Reflecting that Powell strategy and anti-regulatory corporate ideology, Gorsuch has signaled a fundamental attack on federal regulatory powers: (see Judge Gorsuch’s concurrence at page 15)….

In that same opinion, Judge Gorsuch not only signals an attack on federal regulatory power. His analysis would virtually repeal the New Deal Administrative state and harken back to the 19th century “non-delegation doctrine” the Supreme Court once invoked to block New Deal reforms.

And, in the first chance he had, Gorsuch did just that, (by invoking 19th century “freedom of contract”, not the “non-delegation” doctrine) (see: A New Lochner Era):

Janus is the culmination of several recent 5–4 decisions in which the court’s conservatives laid the groundwork for a fatal blow to public sector unions. But its true predecessor is Lochner v. New York, the notorious 1905 decision that turbocharged the court’s pro-business interventions into health, safety, and economic regulation. This term, Kennedy helped the court revive Lochner in Janus and two other sweeping 5–4 decisions that undermined labor rights and women’s health. His successor is certain to accelerate this trend, all but ensuring an impending judicial crisis. …

… in his Epic [Janus] opinion, Justice Neil Gorsuch ruled that the NLRA did not safeguard employees’ ability to sue collectively, claiming baselessly that class-action lawsuits don’t count as “concerted activities.” In the process, he gutted the NLRA, calling Section 7—which was meant to be American labor’s Magna Carta—a mere “mousehole,” undermining future plaintiffs’ ability to resolve workplace conflicts collectively. There is no legal justification for neutering the NLRA. Gorsuch simply imposed his own anti-labor ideology onto the law, shredding precedent and the plain meaning of the statutes to reach his desired pro-business result.

The legal attack applies not only to labor laws –  “His [Judge Kavanaugh’s] opinion had echoes of 19th-century state court rulings that factory workers assumed the risk of injuries from machinery that cut off their hands.” – but virtually all federal public health, safety, economic and environmental regulation.

(read the right wing Federalist Society radical legal attack on the New Deals “administrative state” seeking to invoke the 19th century’s “non-delegation doctrine”.)

The stakes are huge and made abundantly clear in the Senate’s confirmation of Trump nominated Judge Kavaugh. (A New Lochner Era):

In her Janus dissent, Justice Elena Kagan issued a grave warning: “Almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things.” This term, thanks to Gorsuch’s fifth vote, the Supreme Court descended into radical partisanship that jeopardizes its institutional legitimacy. Kennedy’s replacement, inevitably a Gorsuch clone, will shore up a five-vote bloc to further impair labor rights, health care, and access to justice under capricious and pretextual constitutional doctrines. It will be Donald Trump’s Supreme Court. And the president’s judicial avatars will usher in a new era of Lochner-ism that subverts American democracy for decades.

The predictions in that Lochner article were validated buy Trump’s nomination of Kavanaugh (see “Liberty For Whom?):

… in 2017, Kavanaugh struck his most radical stance yet: He proclaimed that net neutrality violates the First Amendment. In a lone dissent, Kavanaugh compared internet service providers to “publishers, newspapers, and pamphleteers” who apply “editorial discretion” to their content. Internet service providers, Kavanaugh wrote, have a free-speech right to throttle the websites of their competitors, just as newspaper editors have a right to select their preferred op-eds. The government, he concluded, has no power “to regulate the content choices of private editors” (like Comcast), even when those “editors” are using their monopoly power to crush competition in the interest of profit, not expression.

But the coup de grâce of Kavanaugh’s Lochner streak came when the judge announced that the structure of the Consumer Financial Protection Bureau is unconstitutional. He first attacked the CFPB in October 2016, writing for the majority on a three-judge panel; his onslaught continued this past January, when the full D.C. Circuit reversed his panel decision, upholding the CFPBand prompting Kavanaugh to write a bitter dissent. The CFPB, an executive agency that regulates the financial services industry (to great success), is led by a single commissioner who can only be removed by the president for cause. Noting Congress’ desire to shield this commissioner from “political winds and presidential will” in light of the 2008 recession, the full D.C. Circuit upheld the agency’s independence.

Where the hell are the Democrats?

Where is the media? Amnesia? Cowardice? Corporate control?

The NPR setup story this morning almost made me puke. And this was broadcast AFTER they had what should have been an expose: an interview of a colleague of Kavanaugh’s who openly said the confirmation must be rammed through “prior to the mid-terms”, a comment that revealed the Republican’s political agenda.

They seem to have forgotten this NY Times editorial warning:

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. …

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.

“The Resistance” is diverted and bogged down in what Chris Hedges calls “boutique” activism – AKA identity politics – they displace fundamental economic, role of government, and regulatory issues.

It is truly sickening when the NY Times editorial Board is to the left of “The Resistance”.

[Update: 5/8/19 – Trump’s own lawyer confirms exactly what I was saying:

McGahn said a big part of his job as White House counsel was to deregulate and rein in the “administrative state.”

  • He said he did that by writing deregulatory executive orders and picking judicial nominees who wanted to limit the power of federal agencies.

  • He talked about Trump nominating judges who agree that the courts have given too much flexibility to federal agencies to interpret laws and enforce regulations.

  • McGahn said they looked for potential judges who wanted to reconsider the “Chevron deference,” which requires the courts to defer to federal agencies’ “reasonable” interpretations of ambiguous laws.

  • McGahn said Trump’s judges will spend 30–40 years unwinding the power of executive agencies.

[Update – 9/8/18 – Nader agrees: Ralph Nader: Kavanaugh Is a Corporation Masquerading as a Judge – end update]


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