Supremely Elite: How Democrats Can Make the Justices a Winning Campaign Issue
By Eric Segall
Journalist Adam Cohen details how the Justices have done the bidding of the wealthy in his excellent book “Supreme Inequality.” According to Cohen, for over four decades the Court has used its far-ranging powers to allow corporations and individual billionaires to inject unlimited money into our elections while at the same time misinterpreting federal statutes and the United States Constitution to disenfranchise minority voters, assist big business, and hurt middle-class and poor consumers.
[Disclaimer: With everything going on right now, I know there are much more urgent matters that need addressing than the role of the Supreme Court in the next election, but I’m not a doctor and don’t even play one on TV so I guess I will march on with what I know. My heart goes out to all those affected by the virus.]
As the 2020 general election approaches, Democrats should take heed that exit polls taken after the 2016 Presidential election showed that approximately one-quarter of Donald Trump supporters said the Supreme Court was the most important reason why they voted for him. Trump made the Justices a visible issue in the campaign by saying he would nominate people like the late Justice Antonin Scalia and by publicizing a list of potential Supreme Court nominees, most of whom belonged to the conservative Federalist Society. In September, 2018, just before the mid-term elections, 76% of people polled said the Supreme Court was “very important” to their vote. President Trump and the GOP are likely to politicize the Supreme Court again in the 2020 election.
As the 2020 general election approaches, Democrats should take heed that exit polls taken after the 2016 Presidential election showed that approximately one-quarter of Donald Trump supporters said the Supreme Court was the most important reason why they voted for him. Trump made the Justices a visible issue in the campaign by saying he would nominate people like the late Justice Antonin Scalia and by publicizing a list of potential Supreme Court nominees, most of whom belonged to the conservative Federalist Society. In September, 2018, just before the mid-term elections, 76% of people polled said the Supreme Court was “very important” to their vote. President Trump and the GOP are likely to politicize the Supreme Court again in the 2020 election.
Democrats cannot afford to
be passive on this issue, but neither should they emphasize traditionally
controversial legal topics such as abortion, gun control, and the separation of
church and state. For example, Republicans have long used abortion successfully
as a campaign issue. Instead, Democrats should focus on how the Supreme Court
has been the best friend of the rich and powerful and the enemy of the middle
class, the poor, and minority groups.
Journalist Adam Cohen details how the Justices have done the bidding of the wealthy in his excellent book “Supreme Inequality.” According to Cohen, for over four decades the Court has used its far-ranging powers to allow corporations and individual billionaires to inject unlimited money into our elections while at the same time misinterpreting federal statutes and the United States Constitution to disenfranchise minority voters, assist big business, and hurt middle-class and poor consumers.
After the Watergate scandal of the early 1970s, Congress
passed bipartisan campaign finance reform limiting how much money wealthy individuals
and large corporations could spend on national elections and created the
Federal Election Commission to enforce those limits. Congress tried to cap both
direct contributions to political candidates and expenditures supporting those
candidates. Just a few years later, however, in Buckley v. Valeo, the Justices struck down the statute’s
limits on so-called independent expenditures primarily on the questionable basis
that those expenditures constituted pure speech that deserves full First
Amendment protection.
Eventually, after a series of cases that went back and
forth on how much leeway legislatures had to limit the influence of money on
elections, the Justices held in Citizens United v.
FEC, and subsequent cases, that large corporations, labor unions, and wealthy
individuals could spend as much money as they want supporting political
candidates as long as that spending was not directly coordinated with the candidates—a
limit with virtually no teeth. The result of those cases is that large moneyed
interests may spend as much money as they want on candidates they support and the
issues they care about.
While the Court was busy invalidating limits on campaign spending
by the rich and the powerful, it issued numerous decisions disenfranchising poor
and minority voters. The Justices upheld voter
identification laws despite no evidence that in-person voter fraud has ever
been a problem in state and federal elections; it allowed
states to purge voter rolls which had a disproportionate effect on the least wealthy
voters; and in its most important election-related opinion, the
Justices struck down a key provision of the Voting Rights Act allowing states
with long histories of targeting minority voters to once again pass laws making
it much more difficult for people of color to vote.
The Supreme Court has also been the enabler of the rich
and powerful in numerous legal arenas outside election law. For example, two
important ways consumers can require corporations to comply with the law are through
lawsuits awarding punitive damages for the most reprehensible business conduct and
class actions where thousands of injured people incur relatively small damages that
are unlikely to generate individual lawsuits but can support class action
suits. As Cohen demonstrates, in both areas of the law, the Justices have made
it much harder for injured consumers to prevail.
As to punitive damages, the Court has used the vague text
of the Fourteenth Amendment’s Due Process Clause to reduce large punitive
damages awards in such high profile cases
as the Exxon Valdez disaster, where a drunk ship captain caused
severe environmental damage. In that lawsuit, the Justices reduced a five-billion-dollar
award to five-hundred million dollars, an amount that Exxon barely noticed.
More importantly, the decision sent a message to businesses of all kinds that
they need not fear large punitive damages verdicts no matter how terrible their
actions and what damage they cause.
As to class action suits, the Court misinterpreted the
1926 Federal Arbitration Act to allow corporations to require consumers to sign
contracts waiving their right to file class actions and proceed by individual arbitration
despite state laws making such contracts illegal. The Justices reached that decision
even though the Act expressly states that nothing in the law was intended to
supersede conflicting state law. Both decisions help big business and hurt
injured plaintiffs.
There is no doubt the GOP will once again inject the Supreme
Court into the 2020 election. Rather than fight that battle on the familiar territory
of guns, religion, and abortion, Democrats should emphasize how the Justices
represent the interests of the rich and powerful instead of voters, consumers,
and minority groups.