I was preparing to write this blog post about the Supreme Court when word came down that Judge Aileen Cannon had thrown out the classified documents case against Trump, which just shows that the problem is much deeper than the six conservatives on the Supreme Court. Cannon’s outrageous ruling that special counsel Jack Smith was unlawfully appointed, going against fifty years of settled precedent, epitomizes how far conservative judges will now go to advance the power of their movement.
Cannon’s ruling followed a line of argument previously laid out by Clarence Thomas. The links tying Thomas and Samuel Alito to the MAGA movement are well known and have elicited strong criticism over their refusal to recuse themselves from the presidential immunity case. The ruling in that case, which essentially flies in the face of the fundamental constitutional principle that we want a president not a king, came after months of delay virtually ensuring that Trump will not come to trial before the election.
It could have been predicted that Thomas, Alito, and the three justices appointed by Trump would do their damnedest to shield Trump from prosecution, but the opinion in that case was actually written by Chief Justice John Roberts. Though others may grab the headlines, it’s clear that Roberts is the most influential figure on the Court. His willingness to support the authoritarian implications of that ruling is a bit puzzling, but it begins to make sense if we understand Roberts’s larger agenda.
I think the best frame for understanding Roberts is the ideology of neofederalism. Rising in the 1970s and coming to the fore under the presidency of Ronald Reagan, neofederalism is basically the idea that markets should rule. Politically, that means unshackling markets from any form of government control. The main theme that runs through Roberts’s leadership on the Court is his consistent opposition to government regulations. In practice, that has meant shifting power from government to large corporations.
The Court’s surrender to corporate power was highlighted in 2010 by the Citizens United case, which gave corporations the same right of free speech as people. The ruling unleashed a tidal wave of dark money into our elections and made it clear that, from a neofederalist perspective, enhancing corporate power is more important than preserving a healthy democracy.
This term the main target of the Court’s crusade has been environmental regulation. The most radical of those decisions came in the case of Loper Bright Enterprises v. Raimondo, which threw out the longstanding principle known as “Chevron deference.” The bedrock environmental laws in this country were passed in the 1970s and gave federal agencies broad authority to deal with threats to our clean air and clean water. When those powers were initially challenged in court, the Supreme Court ruled that judges should defer to the scientific expertise of those charged with implementing the law. In rejecting that principle, the Court has now drastically shifted power from the administrative state to the courts. The impact that this will have on environmental protections was made clear in two other Court rulings reducing the EPA’s ability to protect our water and limit toxic air pollution from power plants and industry.
It is delusional to think that corporations can be trusted to ensure the safety of our food, our workplaces, and so many other things. That is why government regulations were enacted and still enjoy broad popular support. And that is why neofederalist ideology is no friend to democracy. While we still have a democracy, it is vital that we use it to support candidates who still believe people are more important than corporations. There are many reforms that could be enacted to counter the pernicious alliance of the Supreme Court, the MAGA movement, and huge corporations, but none of this will come to pass if we don’t elect Democrats.
Paul Harris
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