The Destruction of the Supreme Court

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As my reading pile diminished, I asked my housemate who works in a still operating library to bring me home a pile of books to keep me busy. One of the books she brought me was  Supreme Inequality:  The Supreme Court’s Fifty-Year Battle for A More Unjust America,Adam Cohen, Penguin Press, NY, 2020.  Cohen is an attorney and a journalist and I had read one of his previous books, Imbeciles:  The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck, also an excellent read for those who care about disability rights. In the Supreme Court book, he outlines the history of Supreme Court jurisprudence from 1953 when Earl Warren was sworn in as chief justice to now. After Warren did not turn out as Eisenhower had hoped, he describes the pressure put on by Nixon to change the court by pressure to retire and scurrilous campaigns against Abe Fortas so he would resign – much like what we see today directed at RGB.

Cohen focuses on key issues that matter to the vast number of Americans: poverty, education, campaign finance, voting, workers, and corporations. He shows how the court turned from protecting to demonizing the poor and how the promise of equal education under Brown v. Board of Education has been steadily undermined until today our schools are more segregated than they were in the 1950s.

I was particularly interested in the chapter about campaign finance starting with the Buckley v. Valeo opinion in 1976 and ending with the Citizens United decision that sold our democracy to the highest bidder. I was in law school when Buckley came out and wrote a paper in my Constitutional law class about what a horrible decision it was and that it would lead to widespread corruption and the destruction of democracy.

Since the decision, the wealthy have gotten their taxes lowered from 70% in 1976 to 37% in 2018 and even lower now with the Trump cuts though 55% of Americans opposed the tax cut and only 33% supported it.  66% knew it would help the rich more than the middle class. But the campaign contributions and independent expenditures allowed since Buckley mean the opinion of the majority means little.

A Bloomberg analysis of the Trump tax cuts showed that after a year the bonanza for corporations was even bigger than we had predicted.  In 2018, 60 profitable companies paid no taxes at all including GM and IBM. In fact, IBM earned $500 million and then got $342 million back from the federal government.  GM had 4.3 billion in income and reported a negative tax rate.  We everyday people should be so lucky.

The Trump tax cut was so beneficial to the wealthy that 58% of over 11, 000 lobbyists were working on tax policy in D.C.  They contributed $9.6 million in campaign donations to members of Congress. Oh that my little three representatives (two Senators and one representative) would work for me so well!

Republican donor Adelson in Las Vegas reported a $670 million income tax benefit from it.  Speaker Ryan from Wisconsin shortly thereafter visited with Adelson and got a $30 million donation to a Super PAC.  That’s pretty chintzy when Adelson got $670 million!

The Koch brothers were on line to save $1.4 billion a year in taxes.  A month after the tax cut passed, they said they would spend $400 million to support conservative candidates. They are cheap too not just to their workers, but their friends!

In poll after poll Americans ask for higher taxes on the wealthy.  In 2017, 75% of Americans said the wealthy should pay more.  When Buckley was decided in 1976, the rate on the wealthy was 70%.  One mouth-foaming lawyer screamed at me, name me a country that had tax rates of 70% and was successful.  My answer:  The United States. During WWII, the rates were even higher.

My professor in 1976 vehemently disagreed and we had several heated arguments. I think he gave me a B. I should go back and ask him to retroactively correct that to an A as everything I prophesized has occurred.

The destruction of voting rights for targeted minorities with Bush v. Gore and Shelby County being prime examples illustrates another value that apparently the Supreme Court does not hold in high esteem. They just admitted that gerrymandering violates voting rights, but they can’t figure out anything to do anything about it.  They had no trouble in Shelby finding that it was time to lift the restrictions though hundreds of pages of Congressional testimony showed the problem was ongoing.

Attacks on workers and unions have come from every direction including fee check-offs, “right to work” laws, NLRB decisions, wage theft, “tort reform” to shield corporations from the harm done to workers and on and on.  Research has shown that from 1973-2007, union membership declined from 34% to 8%; while at the same time, inequality in hourly wages increased by more than 40%.  The authors of that study said that at least one-third of that decline was based on the loss of unions

Unions have a positive wage impact of approximately 20%. They are far more likely to have health benefits that are more inclusive and affordable and a pension plan – all of which used to be de rigor when I was growing up and getting jobs in my 20s and 30s.  With benefits taken into account, those in a union receive about 28% more.

Right-to-work states, of which Arizona is one, have wages about 3.3% lower. Refusal to raise the minimum wage since 2009 is based on corporate whining as well. Today 29 states and D.C. have minimum wages higher than the federal one.  Since 1968, minimum wage has lost its value by one-third.  If it had kept pace with inflation, it would be $12 and 6.6 million fewer people would be in poverty.

Wage theft from low wage workers is a huge problem with 2.4 million workers losing about $3,300 per worker per year.  The underfunding and hamstringing of OSHA causes more harm to workers who are not adequately protected nor compensated for their injuries.  Workers face the same problem in the pandemic – return to work that is not safe or lose their job and benefits.

A political scientist at Vanderbilt, Larry Bartels, studied how different classes fared under presidents of the two parties.  Since the late 1940s, the incomes of the middle-class families rose more than twice as fast under Democratic than Republican presidents.  The incomes of working-class families rose more than 10 times under Democrats than Republicans.  The Supreme Court rulings have caused massive transfer of wealth to corporations, shareholders, and CEOs.  The same people who cry crocodile tears about wealth transfers to poor working people in fact are receiving massive transfers to them! It’s not an accident that we have such widespread income inequality today – it’s the plan. And it’s working.

That the Supreme Court has been completely “captured” is amply illustrated in the chapter on corporations from cutting the amount of punitive damages no matter how bad the conduct of the corporation, to granting corporations constitutional rights that people don’t even have (Scalia has made it clear the 14th Amendment does not cover women though it does cover corporations as he made clear in his decision in Citizens United), limiting class actions, mandating arbitration, and allowing the destruction of the environment.  These decisions have helped increase the income inequality that is as large as it was shortly before the Great Depression.

Erwin Chemerinsky, constitutional expert and dean of Berkeley Law School, found that from 2005-2008 the Roberts court was the most pro-business court since the 1930s – and you know where that took us. The Warren court ruled 28% of the time for business; the Burger court 48%; the Rehnquist court 54%; and the Roberts court 64% a study published in 2009 found.  All five of the Roberts court judges (Roberts, Scalia, Thomas, Kennedy, and Alito) were the most pro-business since 1946. Alito was the single most pro-business justice since 1946 and Roberts came in second.

This business court found nothing wrong with keeping an Army veteran with three children in prison for life for shoplifting $153.54 worth of children’s videos but they found it very oppressive for McDonalds to pay $9 million in punitive damages for abusing a physically disabled customer when the company has $50 billion in annual revenue.

In criminal justice the Supreme Court has done nothing but hollow out the momentous rulings that gave the accused some rights i.e. Miranda, Gideon, and Mapp.  The refusal to properly fund public defenders and the continued use of high bail means many innocent people accept plea bargains to get out of jail.  The Innocence Project found that 11% of the people they have exonerated pled guilty to crimes they knew they had not committed because there were no other options. At the National Registry of Exonerations, they found that 12% of the 2,400 exonerations had so pled.

Even when the person is innocent, the months or years in prison take their toll.  When the wage earner is imprisoned, the family income drops 22%.  But then the family pays even more for phone calls, visits, sending the inmate money for even more of a financial hit. The children have worse outcomes in school, work, and upward mobility.  So the sins of the fathers (if they actually did it) are visited on the sons.

When a person is released, s/he may be followed by the carceral system for years.  They may not be able to vote.  They can’t get licenses for many careers or even get a job. So they remain prisoners of the state the rest of their lives.  We know that the power of the criminal justice system is disproportionately directed toward people of color.  Is this a criminal justice system?  Or a prison state doing precisely what it was intended for – control of the disfavored?

Elections have consequences.  Presidential choices for the Supreme Court matter.  A Senate that can stop a bad justice is important. Today’s Supreme Court is no longer a trusted, independent part of the Constitutional checks and balances established by the founders.  It no longer protects people’s rights under the Constitution.  Because of the lifetime tenure of the justices, it’s harder to change than either the Congress or the executive.  In November, we have to change both to save our democracy and protect our rights.

 

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Dianne Post
Dianne Post graduated from the University of Wisconsin in 1969 with a BA in correctional administration, from California State University, San Jose in 1973 with an MS in psychology, and from the University of Wisconsin Law School in 1979 with a J.D. She has worked in fields, in factories, in stores, and in a trucking company – the only thing she never did was waitressing, though she was a bartender! As a lawyer, she represented battered women and children for 18 years and then moved to international human rights doing gender-based violence work and representing the Roma to the current day. She was active in the LGBT movement for years until they lost their way. She is currently facilitator for the Central AZ National Lawyers Guild, treasurer for Central Phoenix Inez Casiano NOW, facilitator for Arizona Justice Alliance, legislative liaison for State NOW, and on the ERA Task Force AZ board. In her spare time, she grows organic vegetables and reads.

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