Friday, June 22, 2012 by Common Dreams
Though all political eyes and ears await an upcoming decision
by the US Supreme Court on the Affordable Care Act, likely to be handed
down next week, a new study released on Thursday suggests that many
Americans, while awaiting one decision or another, are missing a larger
trend pervading the Robert's court. The report,
released by the Constitution Accountability Center, found that in every
case before the court this term, the majority has found in favor of the
position taken by the US Chamber of Commerce, a conservative lobbying
group.
This trend, in which the Chamber has scored seven consecutive victories, bolsters arguments made by many observers who note that the Supreme Court in recent years has taken decidedly favorable positions for business interests while siding against the arguments of consumer advocates, labor unions, and the public interest.
The Nation's John Nichols, responding to Thursday's SCOTUS decision that will now require public-employee unions to get specific permission from employees in workplaces they represent for special assessments before making political campaign expenditures, said the pattern of corporate interests winning out over the interests of "real human beings" is quite clear.
"The Court-ordered shift creates an incredible bureaucratic nightmare for organizations that represent hundreds of thousands of workers," contends Nichols. "And," he adds,"It was entirely unnecessary, as key unions have indicated that they would be willing not just to maintain their “opt-out” clauses but to refund special assessment money to any member or represented nonmember who might object to a political initiative."
Writing the dissenting for the opinion was Justice Stephen Breyer who was joined only by Justice Kagan in opposing the majority. “The debate about public unions’ collective bargaining rights is currently intense,” Breyer wrote. “The question of how a nonmember indicates a desire not to pay constitutes an important part of this debate.… There is no good reason for this court suddenly to enter the debate, much less now to decide that the Constitution resolves it.”
If both history and legal precedent are being written at the Supreme Court, the tale seems to be that big business has a court quite willing to take its side in arguments. For many, the more troubling development is the manner in which the court has gone out of its way to make life that much harder for those who seek to put the reigns on corporate power.
Huffington Post: Supreme Court: U.S. Chamber Of Commerce Undefeated This Term
John Nichols: High Court Produces a Politics Of, By and For Corporations
This trend, in which the Chamber has scored seven consecutive victories, bolsters arguments made by many observers who note that the Supreme Court in recent years has taken decidedly favorable positions for business interests while siding against the arguments of consumer advocates, labor unions, and the public interest.
The Nation's John Nichols, responding to Thursday's SCOTUS decision that will now require public-employee unions to get specific permission from employees in workplaces they represent for special assessments before making political campaign expenditures, said the pattern of corporate interests winning out over the interests of "real human beings" is quite clear.
"The Court-ordered shift creates an incredible bureaucratic nightmare for organizations that represent hundreds of thousands of workers," contends Nichols. "And," he adds,"It was entirely unnecessary, as key unions have indicated that they would be willing not just to maintain their “opt-out” clauses but to refund special assessment money to any member or represented nonmember who might object to a political initiative."
Writing the dissenting for the opinion was Justice Stephen Breyer who was joined only by Justice Kagan in opposing the majority. “The debate about public unions’ collective bargaining rights is currently intense,” Breyer wrote. “The question of how a nonmember indicates a desire not to pay constitutes an important part of this debate.… There is no good reason for this court suddenly to enter the debate, much less now to decide that the Constitution resolves it.”
If both history and legal precedent are being written at the Supreme Court, the tale seems to be that big business has a court quite willing to take its side in arguments. For many, the more troubling development is the manner in which the court has gone out of its way to make life that much harder for those who seek to put the reigns on corporate power.
* * *
The U.S. Chamber of Commerce is undefeated at the Supreme Court this term, continuing to improve its success in securing business-friendly judgments since Chief Justice John Roberts took the bench in 2005.
The Constitutional Accountability Center, a left-leaning think tank and law firm, reported its findings on Thursday, noting that this term, which began in October and will likely conclude by the end of June, could be the chamber's "first 'perfect' term before the Supreme Court since at least 1994."
This term's "string of seven straight victories brings the chamber’s overall win/loss rate before the Roberts Court up to 68 percent (60 of 88 cases)," wrote Neal Weare, the center's litigation counsel and Supreme Court fellow. That success rate is significantly higher than during comparable periods of personnel stability under the past two chief justices, William Rehnquist and Warren Burger. From 1994 to 2005, when Rehnquist was chief justice, the chamber succeeded in 56 percent of the cases it backed. The business lobby had a 43 percent success rate from 1981 to 1986 during the final years of Chief Justice Warren Burger's tenure.
The chamber, a pro-business lobbying group that supports conservative candidates and causes, formed its modern litigation strategy in 1971, when corporate attorney Lewis Powell wrote a memorandum that urged the group to aggressively pursue its interests in courts, citing the liberal American Civil Liberties Union's success as a model. "Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change," Powell wrote. Then-President Richard Nixon nominated Powell that same year to the Supreme Court, where he wrote the opinion that the Roberts Court relied upon in the Citizens United decision to allow unlimited corporate spending in political campaigns.
The health care cases, likely to be decided next week, may yet spoil the chamber's perfect season. The chamber took no position on the individual mandate's constitutionality, but did urge the justices to strike down the entire law if they decide to void the mandate. That position, however, found little support among the justices during oral argument in March.
Still, not even a loss in the Supreme Court's highest profile case of the term, if not the decade, would do much to dent the chamber's high rate of success at the Roberts Court.
* * *
The most politically partisan—and politically activist—Supreme Court in modern American history has already assumed that, when it comes to electioneering, corporations have pretty much the same rights as human beings. Indeed, the High Court’s Citizens United ruling has given corporations unprecedented flexibility to act on their own behalf to influence election campaigns and results.
Yet, the same Court has now said that groups of actual human beings—trade unions that have organized public-sector workers—must sacrifice their flexibility in order to meet standards never before demanded of labor organizations.
Do we detect a pattern here?
Of course.
That pattern was on stark display in Thursday’s Supreme Court decision to require that public-employee unions get specific permission from employees in workplaces they represent for special assessments that are used to advance political agendas. This high court swipe at the ability of working people to make their voices heard in the political life of communities, states and the nation won't get the attention that will be accorded the Supreme Court's equally politicized ruling on the Affordable Care Act.
But there's a good argument to be made that, by further skewing the Democratic process that was so badly warped by the 2010 Citizens United ruling, the court has done even greater damage to the long-term prospects for renewing the republic.
The damage is contained in a structural shift that will make unions -- and potentially other membership-based organizations -- less flexible and functional in the political fights of the future.
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