Sunday, February 20, 2011

The US Supreme Court's recent decisions in favour of Corporations

The Supreme Court has delivered a rash of sweeping victories to the corporate class, including these four top hits:

1. Lilly Ledbetter, 2007. For decades, Goodyear Tire & Rubber Co. had quietly been stiffing this longtime, loyal employee on her paycheck. A manager in the tire giant's Alabama plant, Ledbetter was unaware that she was being paid substantially less than her male counterparts -- a clear violation of federal anti-discrimination laws. Only learning of this maltreatment late in her career, Ledbetter sued Goodyear for the back pay she was owed. The corporation fought her all the way to the Supreme Court.

No go, ruled Roberts, Alito, Kennedy, Scalia, and Thomas. Under the statute, they sniffed, employees must file any bias suit within 180 days after the discrim-ination begins, and Ledbetter's suit had come 21 years after Goodyear started cheating her, so... tough luck, lady.

Forget heartless, this ruling was mindless. And needlessly picayune. Obviously, your honors, Ms. Ledbetter could not have filed within 180 days, since she didn't know she was being shorted! The honest way to interpret the statute would be that the 180-day limit begins after she became aware of the violation. But the Roberts Five were not looking for rationality, much less justice -- they were on a deliberate mission to rewrite and restrict the pay discrimination law for the benefit of corporate discriminators.

This decision sparked genuine public outrage, making it a flashpoint issue in the 2008 presidential race. Upon taking office in January 2009, Obama and the Democratic Congress pushed the Lilly Ledbetter Fair Pay Act into law, shoving the justices' corporate bias right back in their faces.

2. Making up law to help polluters, 2008. The catastrophic environmental and economic disaster caused in Alaska by the Exxon Valdez supertanker in 1989 resulted in a jury award of $5 billion to the local people who were harmed. The oil behemoth's battalion of lawyers, however, stalled pay- ment for years with various legal maneuvers, before getting a federal court of appeals to cut the sum in half. Still, despite the corporation's egregious malfeasance, Exxon pushed for an even sweeter deal, finally steering the case to the safe harbor of the Roberts Court. In 2008, nearly 20 years after the disaster, another five-man majority led by Roberts slashed the damage award to $500 million, a mere tenth of the original jury assessment -- and less than two days worth of Exxon profits.

Actually, four of the justices tried to eliminate the award altogether, arguing that a corporation should not be responsible for the reckless acts of its own managers! They fell only one vote short of imposing this creative rewrite of corporate law on us. Nonetheless, the Roberts Court satisfied its impulse to legislate from the bench by dictating a new, corporate-pleasing formula for determining punitive damages under maritime law -- a formula not found in the statute and not intended by Congress -- thus making up a law to benefit polluters.

3. Binding the EPA, 2009. The fearless five took up their legislative pens once again in two cases involving the Clean Water Act. Under this law, electric power companies must use "the best technology available" to keep from harming fish and other aquatic life when they draw from the public waterways to cool their generators.In an environmental lawsuit involving Entergy Corporation, a giant electric utility based in New Orleans, Louisiana, the RAKST quintet came out of right field to rule that the EPA should consider the cost to the power companies when evaluating "the best" environmental technologies. This generous gift to utilities was not included in the law by the legislative branch, so the five judicial branch activists thought- fully added it themselves.

Later that same year, they also diluted the Clean Water law by siding with a mining corporation named Couer Alaska. This outfit wanted to dump a waste product called "tailings" directly into lakes. The five (plus Justice Stephen Breyer this time) cheerfully decided that this pollution is okay, as long as the polluter holds an Army Corps of Engineers permit. Never mind that such dumping is expressly banned by EPA rules, the Supremes were on a roll.

4. The grandest giveaway of all, 2010. In January of last year, these five potentates of plutocracy issued a ruling that has caused a massively destructive tectonic shift in America's political process, thrusting mountains of corporate money high above the people's democratic power. The Lowdown has covered the impact and import of the now infamous Citizens United decree by the Court (see Lowdown issues September 2009 and March 2010). But it's important to add here that the Court's edict, which magically turned inanimate corporations into "persons" (with constitutionally protected electioneering 'rights' that make them politically superior to actual persons), is not only an absurd and intolerable overreach in logic, but also in process.

"Judicial activism" is way too tame a phrase for what Roberts & Company did here. This was a coup -- a plotted overthrow of the orderly judicial process in order to enthrone corporate political interests over all others.

In June 2009, the Court quietly reached into its caseload and plucked out an obscure case brought by Citizens United, a corporate-funded political front that was challenging a mundane point in federal election law. After hearing oral arguments in this ordinary case, the Roberts majority did something extraordinary: the justices arbitrarily altered the case that had been brought to them, completely rewriting Citizens United's complaint.

Instead of addressing the group's minor question, the Court issued an order for the parties to address whether unlimited and unreported sums of corporate money should be allowed in all US elections. In other words, these scoundrels in robes created their own case proposing a sweeping change in America's democratic system.

They then rushed to judgment, giving the lawyers involved only a single month to prepare arguments on this entirely new, momentous question. They also hurried the case to the front of the line, scheduling oral arguments on it in September, before the Court would normally be in session. January 2010, only seven months after they'd sprung their Citizens United surprise, the five issued their constitutional rewrite. It imposes their will (i.e., egos and personal ideological bias) over: (1) the clear intention of our Constitution's framers to keep corporations out of politics; (2) a century of settled congressional law banning corporate funds in elections; (3) the laws of 22 states that prohibit corporate spending in their elections; (4) many decades of the Court's own precedents affirming the wisdom of outlawing corporate electioneering cash; and (5) the overwhelming belief of the American people, that only humans, not corporations, should be election participants.

So, exercising exquisite judicial imperiousness, five judges decided that they're wiser than all of the above, unilaterally pulling off a sneak attack that, in the words of People For The American Way, amounts to the "constitutionalization of corporate political power."

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