This item by J.P. Green was originally published on December 16, 2011.
One of the conclusions you get from Jedediah Purdy’s Democracy post “The Roberts Court v. America” is that the Democrats were too hasty in confirming the current CJ and the other conservative justices.
Subtitled “How the Roberts Supreme Court is using the First Amendment to craft a radical, free-market jurisprudence,” Purdy paints a disturbing portrait of a court majority dedicated to gratifying wealthy elites at the expense of working people. Most Dems were generally aware of this, but Purdy’s report should heighten concern about the future of economic progress in America under a High Court dedicated to de-regulation. As Purdy summarizes the philosophy of the current High Court:
In the last few years, the Supreme Court and lower federal courts have shown a new hostility toward laws that regulate the economy and try to limit the effects of economic power. They have declared a series of laws unconstitutional, most famously limits on corporate campaign spending (the Supreme Court) and a key part of Congress’s 2010 health-care reform act (among others the 11th Circuit Court in Atlanta; the Supreme Court will decide the issue in the coming year)… and struck down other state laws that try to constrain the effect of wealth on elections. These decisions don’t just trim around the edges of regulation: They go to the heart of whether government can act to balance out private economic power in an era of growing economic inequality and insecurity. These decisions chime with some of the more troubling themes of the time. They fit well with the economics-minded idea that most of life is best seen as a marketplace, and with the right-wing mistrust of government that has metastasized into Tea Party contempt and anger.
Liberals have denounced many of these decisions, but they have not yet spelled out the larger pattern. What’s missing from the criticism is a picture of what these cases add up to: an identity for the Roberts Court as the judicial voice of the idea that nearly everything works best on market logic, that economic models of behavior capture most of what matters, and political, civic, and moral distinctions mostly amount to obscurantism and special pleading.
The author believes the current court is headed in the direction of the “Lochner era,” named for an emblematic case which in which the Supreme Court of 1905 launched an era of some 200 decisions bashing worker rights and undermining economic fairness to benefit the already-wealthy, laying the foundation for unfettered corporate abuse. “The new cases have different doctrinal logic, and the economy has changed vastly, but the bottom lines are eerily alike: giving constitutional protection to unequal economic power in the name of personal liberty.”
Purdy sketches the ideological underpinnings of the Roberts Court:
The Supreme Court’s several-pronged attack on the regulation of spending, selling, and buying reinforces one of the most persistent and pernicious intellectual mistakes of the time…the idea that markets are natural phenomena, arising from their own organic principles and free human action, while politics and lawmaking are artificial interferences with this natural activity. In fact, as sophisticated economists, lawyers, and others have always understood, markets are the products of law, which defines and enforces the ownership and exchanges that set the market in motion. A laissez-faire market arises from one kind of law, a more social-democratic market from another. There are things to say for and against both kinds of markets, and any real-life economy has complex blends of both elements–for instance, minimum-wage laws, bans on racial discrimination and prostitution, speed and weight limits for long-haul truckers, and so forth are all straightforward limits on laissez-faire market freedom. It is obscurantist to suggest that some version of the laissez-faire market is a natural baseline, and anything that departs from it needs special justification…
Of recent decisions by the Roberts majority, Purdy adds,
That is the spirit of the new cases. Taken to their limit, they would set aside the intellectual and political gains of decades of struggle in the twentieth century: the New Deal recognition that the country must take responsibility for shaping its own economy, and the decision to remove the old American romance with economic libertarianism from constitutional judging…The new jurisprudence shares some special features with the old–in particular, a meshing of constitutional principle with economic libertarianism that calls into question the authority of democratic government to shape markets and, above all, check economic power.
Regarding the upcoming deliberations on HCR, Purdy writes, “The most extreme scenario would begin with invalidating the 2010 Affordable Care Act, but, win or lose, the mere fact that there is a viable constitutional argument against the law is a sign of how far the new economic libertarianism has gone.” Regarding elections and spending, he writes “It is in this market-fixated climate that courts can declare that spending is speech, advertisement is argument, and the transfer of marketing data is a core concern of the First Amendment.”
President Obama was able to get Justices Sotomayor and Kagan confirmed. But now the Senate Republicans are about blocking all Obama court appointments. If the Republicans win, Dems should put Republican court nominees, and particularly their economic philosophy, through more intense scrutiny. One more free market ideologue on the court, and reforms like the minimum wage, health and safety regulation and all remaining elements of the social and economic safety net will all be endangered, if not shredded.
Of course, the term “Robert’s Court” somewhat disses the four liberal/moderate court justices, who may be in the majority on occasion. There is also an argument that one more reactionary Supreme Court Justice won’t make such a big difference. But a 6-3 High Court would prolong the rule of the ‘free’ market purists, potentially for decades longer than the current 5-4 conservative majority.
Progressives have been fairly vigilant in monitoring the records of Court nominees with respect to their views on abortion, gun control, Gay marriage, prayer in school and all of the social issues. But it’s clear that Dems have been too lax in giving conservative court nominees a free ride on their economic philosophies, which are proving hugely consequential to America’s future.
There’s lots more in Purdy’s article that Dems should read to better understand what’s at stake in the November elections. But if political moderates needed just one good reason to vote Democratic in 2012, Purdy’s got it.