Sunday, September 27, 2020


Jeffrey Toobin is right about why Republican presidents want to put judges like Amy Coney Barrett on the Supreme Court. The primary reason isn't abortion.
... a year before Barrett’s birth, Lewis F. Powell, Jr., then a prominent lawyer in Richmond, Virginia, and later a Supreme Court Justice himself, wrote a now famous memorandum to the United States Chamber of Commerce, arguing that businesses needed to take a more aggressive hand in shaping public policy. “The American economic system is under broad attack,” he wrote, from, specifically, the consumer, environmental, and labor movements. He added that “the campus is the single most dynamic source” of that attack. To counter it, Powell suggested that business interests should make a major financial commitment to shaping universities, so that the “bright young men” of tomorrow would hear messages of support for the free-enterprise system. A little less than a decade later, a pair of law professors named Robert Bork and Antonin Scalia signed on as the first faculty advisers to a fledgling organization for conservative law students called the Federalist Society for Law and Public Policy Studies. The efforts of the Federalist Society were lavishly funded by the business interests invoked by Powell, and it has trained a generation or two of future leaders....

Barrett is a product of this movement, and not just because she clerked for Scalia. Her writings and early rulings reflect it. Her financial-disclosure form shows that, in recent years, she has received about seven thousand dollars in honoraria from the Federalist Society and went on ten trips funded by it. But it’s not as if Barrett was bought; she was already sold. The judge has described herself as a “textualist” and an “originalist”—the same words of legal jargon that were associated with Scalia.... But these words are abstractions. In the real world, they operate as an agenda to crush labor unions, curtail environmental regulation, constrain the voting rights of minorities, limit government support for health care, and free the wealthy to buy political influence.
And lo and behold:
The political advocacy group backed by billionaire Charles Koch is officially launching their campaign in support of President Donald Trump’s latest nominee to the Supreme Court.

The Koch linked group, Americans for Prosperity (AFP), moved ahead with what will likely be an expansive and expensive campaign for the organization to help push Trump’s nominee through the Senate....

This will be the latest Supreme Court fight AFP will be involved with since Trump has become president. They ran campaigns backing Neil Gorsuch and Brett Kavanaugh. During the Kavanaugh hearings, they committed seven figures to the cause.
And why would that be? Because of issues that are boring to most voters and vitally important to right-wing billionaires:
One potential target in a Supreme Court unfettered by its own past precedents is the 2007 ruling in Massachusetts v. EPA that found the Clean Air Act gave the agency the authority to regulate greenhouse gases. Only one of the justices in the majority in that 5-4 case, Stephen Breyer, remains on the court today, while three of the four dissenters still hold their seats.

At least two current justices have signaled interest in revisiting the climate ruling. In 2011, a unanimous court led by Ginsburg reiterated the findings of the Massachusetts ruling — but in a brief concurrence, Justices Samuel Alito and Clarence Thomas said they only voted that way because no one in the second case had challenged the underlying Massachusetts ruling, hinting at their interest in revisiting it.

They doubled down on their opposition in another side note to a 2014 ruling that again largely upheld EPA’s greenhouse gas regulatory authority. The Clean Air Act “was developed for use in regulating the emission of conventional pollutants and is simply not suited for use with respect to greenhouse gases,” they wrote....

Barrett’s penchant for originalism could also drive interest on the Supreme Court of revisiting, limiting or even doing away with a controversial legal doctrine that critics contend unconstitutionally empowers regulators and federal bureaucrats — a concept known as Chevron deference.

Chevron deference seems unlikely to prompt street protests anytime soon, but demolishing the concept has become a cri de coeur for legal conservatives in recent years. Named after the court’s 1984 ruling in a case called Chevron v. Natural Resources Defense Council, the doctrine holds that when a statute about an agency’s power is ambiguous, judges should defer to the agency’s reasonable interpretation of the law.

Opponents of the doctrine argue that it ceded the authority to interpret laws from the judicial branch to the executive, including on key environmental regulations. Justices Clarence Thomas and Neil Gorsuch have both criticized the doctrine, as did Anthony Kennedy before retiring in 2018. Kavanaugh is also thought to be open to limiting it as well.
That's the point of all these court picks. The rulings on abortion and guns are meant to keep Republican voters and one-issue interest groups engaged, but they're a distraction from the real work, which is making the rich richer.

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