Conservatives see a huge return on investment in the courts
by Seth Oldmixon, Thu Mar 06, 2008 at 07:39:19 AM EST
Yesterday, Doug Kendall reported in Slate that it's not just that cases are going the way of corporate interests, the course of legal thought is changing as well.
It's not just particular cases that the chamber is winning, but also foundational issues that set the course of the law. Stoneridge is what lawyers call a "cause of action" case; it was about whether the plaintiffs could get into the courthouse to ensure the enforcement of the obligations that the federal Securities Exchange Act of 1934 imposes on corporations. Decades ago, the court ruled that the Exchange Act necessarily implied that victims of corporate misconduct could sue corporations for flouting the clear legal obligations that this law imposes. But starting in 1975, the court began a steady retreat from the idea that judges could "imply" a cause of action, forcing Congress to state clearly that it wants people to be able to sue. In Stoneridge, the court took this a big step further, saying in effect that people cannot sue companies to enforce an obligation under the Exchange Act that the court has not approved in a prior case. This ruling essentially freezes the enforceability of the Exchange Act.
In fact, as Kendall writes,
It is extremely hard to reconcile what the court has done in cause-of-action cases like Stoneridge with its approach to pre-emption cases like Rowe, Riegel, and Preston. In the cause-of-action cases, the court says Congress must unmistakably express its intention to allow people to go to court to enforce federal mandates. If Congress isn't crystal-clear, potential plaintiffs are out of luck. But in the pre-emption cases, the court seems untroubled by a lack of clarity on Congress' part, ruling that federal law pushes aside state actions or remedies when it's not at all certain that's what Congress so intended. There's one thing these approaches do have in common: They both favor business interests.
This should not surprise us. We've seen a similar pattern in the way conservatives approach economics. Nor, however, should this news cause us to despair. After all, while slow to change, the law is not immutable. It took decades of focused investment and activism for the right to move the courts to their present position.
But we should heed this warning as we approach the November elections. Justice Stevens will turn 88 next month. Justice Ginsberg will be a young 75 next week. By comparison, Justice Alito will turn 58 this year. Chief Justice Roberts has just turned 53 years old in January. Justice Thomas, by far the most far-right member of the court, is only 60.
The next president will, in all likelihood, appoint at least one more Justice to the Supreme Court. One more conservative Justice would push jurisprudence further to the right for generations, and, despite his reputation as a "maverick," the likelihood that John McCain would be able to appoint a centrist is close to nil. The conservative movement will not allow the possibility of a Republican president appointing someone who is not indisputable in their camp - just ask Harriet Miers.
As the Democratic primary battle shows no signs of letting up, it's important to keep in mind the ultimate goal - electing a president who will serve the interests of all people, not only the wealthy and powerful. Regardless of your preference for Clinton or Obama, either candidate would be vastly superior to a McCain administration.