The Oligarchs’ Coup
Last week, the Supreme Court dealt two potentially mortal wounds to American democracy in its decisions regarding voter suppression in Arizona and dark money disclosure in California. By doing so, the Court continued its near continuous two century anti-democratic tradition of striking down any attempts by the other two branches of government to address the inequities of race and wealth, while also showing the only minority it is willing to always protect is the privileged and wealthy. But the Court’s decisions were just one part of a broader and decades-long effort by America’s oligarchs to neuter American democracy, one which appears to have now nearly fully succeeded.
The Court’s decision in the Arizona voting rights case which effectively neuters Section 2 of the Voting Rights Act (VRA) was an example of pure nullification of Congress. The majority’s decision, written by Justice Alito, ruled that voting restrictions that may discriminate against certain voters are still legal as long as they were not written with discriminatory intent. Alito writes, “To the extent that minority and non-minority groups differ with respect to employment, wealth, and education, even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and non-compliance with voting rules. But the mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote”.
That logic turns the actual statutory language of the revision of the VRA that Congress passed in 1982 on its head. As Justice Kagan’s scathing dissent notes, “The majority’s opinion mostly inhabits a law-free zone…The Court always says that it must interpret a statute according to its text — that it has no warrant to override congressional choices. But the majority today flouts those choices with abandon. The language of Section 2 is as broad as broad can be. It applies to any policy that ‘results in’ disparate voting opportunities for minority citizens. It prohibits, without any need to show bad motive, even facially neutral laws that make voting harder for members of one race than of another, given their differing life circumstances. That is the expansive statute Congress wrote, and that our prior decisions have recognized. But the majority today lessens the law — cuts Section 2 down to its own preferred size. The majority creates a set of extra-textual exceptions and considerations to sap the Act’s strength, and to save laws like Arizona’s. No matter what Congress wanted, the majority has other ideas”. As Scott Lemieux summarizes, “What happened here, quite literally, is: 1)In 1982, some conservatives (including John Roberts) urged Congress to pass a narrower version of the VRA; 2)Congress did the exact opposite; 3)Roberts, Alito et al. went ahead and ‘interpreted’ the statute as if their side had prevailed”.
The logic of the conservative majority in the California financial disclosure case is equally mendacious. The case involved claims that the state’s requirement to disclose donations to charities might result in harassment of the donors and was a violation of their First Amendment rights. Justice Roberts, writing for the conservative majority, not only bought the harassment argument hook, line, and sinker, but took an even broader view that any disclosure requirement was probably unconstitutional unless the government could show the requirement was “narrowly tailored” to address an important government interest. As Justice Sotomayor noted in her dissent, the decision “marks reporting and disclosure requirements with a bull’s-eye…Regulated entities who wish to avoid their obligations can do so by vaguely waving toward First Amendment ‘privacy concerns'”.
The majority’s logic is that free speech can only be protected if we do not know exactly who is speaking. Even the awful Antonin Scalia did not buy this argument, writing in a similar case but with a different result in 2010 (with Roberts himself joining the 8-1 majority), “Plaintiffs raise concerns that the disclosure of petition signatures may lead to threats and intimidation. Of course nothing prevents the people of Washington from keeping petition signatures secret to avoid that…But there is no constitutional basis for this Court to impose that course upon the States—or to insist (as today’s opinion does) that it can only be avoided by the demonstration of a ‘sufficiently important governmental interest’…And it may even be a bad idea to keep petition signatures secret. There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.” The decision is an example of the fact that the Roberts Court’s only judicial principle is advancing the agenda of the white establishment and the corporate class, while doing just enough to maintain an appearance of legitimacy for the the Court. In addition, the decision also vividly illustrates that the center of this rogue Court is now farther to the right than even Scalia.
This catering to the corporate class was well illustrated by another case also decided late in this Court’s term. The case involved a California law that allowed unions to enter growers’ property for a few hours on a few days each year in order to help organize the farm workers. The law was the result of the efforts of Cesar Chavez and the United Farm Workers movement in the 1960s. In 1976, the Supreme Court dismissed a challenge to this law, citing the “want of a substantial federal question”. But precedent means nothing to this rogue Court. The Court’s 6-3 decision declared that merely entering the growers’ property was consider a “per se taking”, that is the taking of private property “without just compensation”. This flies in the face of the traditional interpretation of the 5th Amendment which has historically required that only those laws or regulations that deprive “all economically beneficial or productive use” or constitute a “permanent physical occupation” constitute a per se taking. Neither is the case with union organizing efforts. In order to get around this roadblock, Roberts and the conservative majority simply made up new law, ruling that even a temporarily limiting an owner’s “right to exclude” would now require just compensation. If the government is not willing to pay that just compensation, then the owner can simply deny access to the property.
As Justice Breyer writes in his dissent, “The Court holds that the provision’s ‘access to organizers’ requirement amounts to a physical appropriation of property. In its view, virtually every government-authorized invasion is an ‘appropriation’. But this regulation does not ‘appropriate’ anything; it regulates the employers’ right to exclude others…[T]he majority’s conclusion threatens to make many ordinary forms of regulation unusually complex or impractical. And though the majority attempts to create exceptions to narrow its rule,…the law’s need for feasibility suggests that the majority’s framework is wrong”. As Mark Joseph Stern notes, “The consequences of Roberts’ maximalist decision will be swift and severe. Most obviously, it will hobble unions’ ability to help California’s agricultural workers, who toil in dangerous conditions, facing the persistent threat of illness and death, for rock-bottom wages…But the broader implications extend into nearly every corner of commercial activity in the U.S. In dissent, Breyer pointed to ‘the large numbers of ordinary regulations’ that permit an ‘invasion of’ private property. The government can enter a business to examine food products and inspect private schools, for example. Its agents can enter all manner of businesses to ensure compliance with run-of-the-mill health and safety laws. And it can force businesses to serve certain customers by passing civil rights measures. Are these per se takings?…Nondiscrimination laws ‘take’ a club’s right to exclude women, religious minorities, and other disfavored groups. Environmental regulations ‘take’ a landowner’s right to exclude inspectors. Fair housing laws ‘take’ a landlord’s right to exclude Black renters. If guaranteed access to private property (including commercial businesses) is a per se ‘taking,’ then, as Bowie put it, the government will have to start paying for what it regulates”.
In just eight short years, the Roberts Supreme Court has gutted almost the entirety of the historic 1965 VRA. In the next election, because of voting rights restrictions that the Court is now allowing, Native Americans in Montana may have to drive over two hours simply to get to a polling place, and that’s assuming they have a car. And it’s hard to see how any new federal legislation will rectify these issues since the Court is likely to strike it down. After all, the VRA has never been repealed by Congress but that has not stopped this Court from essentially neutering it. Under the Roberts Court, businesses now have the right to use religion as an excuse to discriminate and unions not only have more difficulty organizing but also have to support freeloading workers who do not want to pay union dues. Dark money has free rein to influence elections. As Richard Painter points out, non-profits can now take foreign money and have a constitutional right to keep those details secret.
The Court’s conservative majority promotes and discards various legal theories at will in order to arrive at their largely predetermined conclusions. As Kagan points out, the “equal sovereignty of the the states” theory that undergirded the 2013 evisceration of Section 5 of the VRA “has not made an appearance since”. The theory of states’ rights apparently allows Arizona’s voting restrictions but is immediately discarded when California attempts to discover whether non-profits are abusing their charter. In another case this term, Roberts’ majority opinion was such a convoluted mess that even Justice Gorsuch described it as “a dizzying series of maneuvers” to “turn a big dispute of constitutional law into a small one”, although Gorsuch still joined in a concurrence.
And the worst is yet to come. In the next term, the Court is likely to eliminate or severely restrict the right to an abortion; it will consider a constitutional right to concealed carry; it will consider public funding for religious education; it is likely to to weaken First Amendment protections by making it easier for public figures to sue publications for defamation; it will hear arguments that would weaken federal agencies’ ability to interpret federal law and write regulations; and there will be more expansive exceptions for religious groups to avoid complying with governmental regulations. As Max Kennerly summarizes, based on the Court’s recent rulings, “state governments must, to enforce their own laws, terminate every program that uses outside contractors, from adoption agencies to charter schools. SCOTUS says contractors don’t have to follow the law, so we have to chuck them all”.
Nicholas Bowie, in his remarkable testimony in front of Biden’s court reform commission notes that, back in the 1830s, Alex de Tocqueville wrote, “The American aristocracy is at the lawyers’ bar and on the judges’ bench”, with judges considering themselves a “superior political class and the most intellectual portion of society” and showed “a certain contempt for the judgment of the crowd…Armed with the right of declaring laws unconstitutional, an American magistrate enters constantly into public affairs…The more you think about what happens in the United States, the more you feel persuaded that in this country the body of jurists forms the most powerful and, so to speak, the sole counterweight of democracy…[I]n a society where jurists occupy without dispute the elevated position that [they claim] belongs to them naturally, their spirit will be eminently conservative and will show itself to be antidemocratic”. (Beyond the hypocrisies of the anti-democratic conservative six, perhaps another current example of the hubris de Tocqueville describes is Bryer’s seemingly irreversible decision to not retire strategically in order to maintain the facade of a non-political Court.)
Bowie himself adds, “First, as a matter of historical practice, the Court has wielded an antidemocratic influence on American law, one that has undermined federal attempts to eliminate hierarchies of race, wealth, and status. Second, as a matter of political theory, the Court’s exercise of judicial review undermines the value that distinguishes democracy as an ideal form of government: its pursuit of political equality…Yet if you look at the history of the judicial review of federal legislation, the principal ‘minority’ most often protected by the Court is the wealthy…By contrast, in cases in which Congress has harmed racial, religious, or ideological minorities, the Court has almost exclusively adopted a posture of deference… the Court’s relationship to Congress is not that of an umpire overseeing a batter, but of a rider overseeing a horse. Most of the time, the Court gives Congress free rein to act as it pleases. But the Court remains in the saddle, ready to pull on the reins when Congress moves to disrupt hierarchies of wealth or status. Either way, as Abraham Lincoln feared, ‘the policy of the Government upon vital questions’ is fixed not by any democratic process or even by the Constitution, but by ‘the decisions of the Supreme Court.’ Even when the Court is permissive, Congress can make no law without the Court’s permission”.
Samuel Moyn made similar points in his testimony before the same commission. Moyn writes, “The problem to solve is not that the Supreme Court has lost legitimacy, understood as the current trust of enough observers, but that it thwarts the democratic authority that alone justifies our political arrangements. It is one thing to insulate and protect interpreters of our Constitution and laws from certain kinds of short-term democratic control. It is quite another to cede the last word over large parts of our national political conversation — not to mention the power to edit and throw out major laws — to less accountable powers and, to add insult to injury, to pretend that doing so is either mandated by our Constitution or essential to democracy. The American higher judiciary has too much authority, allocated and arrogated, and this fact has been grievous for our national political experience…The assertion of judicial supremacy, and the invalidation of Congressional acts that goes with it, presents the enormous challenge of controlling essentially limitless authority, so that it does not become a political tool that factions seek — especially when they cannot win electorally”.
Except for a brief moment of liberal control in the 1950s and 1960s, the Supreme Court has been, and apparently will be for next generation or two based on its current makeup, an anti-democratic instrument of the wealthy white establishment. With its decisions regarding voting rights and dark money, E.J. Dionne suggests we call July 1 “Oligarchy Day”, adding “The decisions in both cases could have been written by the Republican National Committee, attorneys for the Koch brothers and advocates of voter suppression”. That’s hardly surprising since all the conservative Justices of the Court have been groomed for their job for decades by the Federalist Society. All six conservatives are currently or previously have been members of the Society. As Senator Whitehouse notes, the judicial advocacy of the Federalist Society is funded by “massive, secret contributions from corporate right-wing groups that have big agendas before the courts”. The conservatives on the Court are merely protecting the dark money oligarchs that put them on the Court to begin with.
The conservative takeover of the courts fulfills a 50 year effort that began with the infamous memo written by future Supreme Court Justice Lewis Powell when he was working for the US Chamber of Commerce in 1971. Powell wrote, “No thoughtful person can question that the American economic system is under broad attack…the most disquieting voices joining the chorus of criticism come from perfectly respectable elements of society: from the college campus, the pulpit, the media, the intellectual and and literary journals, the arts and sciences, and from politicians…If our [capitalist] system is to survive, top management must be equally concerned with protecting and preserving the system itself…Under our constitutional system…the judiciary may be the most important instrument for social, economic, and political change”. Powell had identified the segments of our society that the capitalist class needed to neutralize and ultimately dominate in order to protect and preserve its privileges, while also highlighting how and why the GOP became the party of anti-intellectualism. In the 1980s, the Federalist Society took up Powell’s challenge regarding the courts and now, fifty years later, have fulfilled Powell’s vision.
The oligarchs already control the largest parts of our economy with near monopoly power – the airlines; health insurance, drug stores and drug distributors, the banks; beef, pork, and chicken industry; the tech and cable industries. Their corporate lobbyists have weekly meetings with political leaders in both parties. Dark money PACs befoul our electoral process, determining which candidates are viable or not and now, believe it or not, targeting school board elections. Corruption is rampant. Senators, Representatives, and spouses of political leaders engage in stock trades or business deals with companies they are nominally regulating.
Having taken control of the economy, the courts, and much of the government, the oligarchs are now funding political violence to ensure there can be no challenge to their rule. The heiress to the Publix Supermarket chain put up over a quarter billion dollars to fund the Stop the Steal rally that was planned as an attempted coup on January 6th. And remember that many of those who stormed the Capitol that day were actually members of the professional classes who were there, as Adam Serwer highlights, “because they believed they had been unjustly stripped of their inviolable right to rule”. An auto-scrap billionaire is funding the use of the South Dakota National Guard in order to patrol the Texas-Mexico border, an outrageous private use of the military. This is just a further extension of Trump’s and Barr’s use of out-of-state National Guard troops to quell the BLM protests last summer. Oligarch-supported Republicans are openly consorting with violent right-wing extremists. Despite repeated promises otherwise, big business continues to monetarily support the seditionists in Congress who voted to overturn the results of the election. Those same business leaders stand mute as Republicans and the Court strip away the right to vote and will support the myriad of Republican candidates who will vow to overturn the next election if necessary.
America has only been close to a true democracy since the mid-1960s when the Voting Rights Act was passed and enforced. Within years, Powell was already raising the call to arms to defend the plutocratic class. Now, fifty years on, with the Supreme Court, the “most important instrument for social, economic, and political change”, in their pocket, the oligarchs are back in total control. And they are more determined than ever to never let the democratic process threaten their power and privilege again.