Tuesday, April 5, 2016

On the Friedrich’s Case and Other Supreme Court Follies


By Steve Rossignol 4-3-2016

Public sector unions in California and probably elsewhere in the United States most certainly dodged a bullet on March 29th when the Supreme Court let stand a lower court ruling allowing public sector unions to deduct dues from employees’ paychecks.

While most certainly we will not take any joy in celebrating the demise of anyone, there is no doubt that the recent death of Supreme Court Justice Antonin Scalia was integral in this favorable ruling for the unions.  Scalia had specifically said in January that he would be in favor of overturning the lower court ruling.

And it would almost appear that the Republican Party could technically have been hoisted by their own petard with their insistence on not approving a Supreme Court judicial nominee—it is quite possible that the corporate agenda could have succeeded had the appointment of a judicial nominee been selected and confirmed prior to the Friedrichs decision.

But public sector unions—and indeed probably all unions—are not out of the woods yet. Even while the tie ruling in Friedrichs v California Teachers Association left the verdict of the lower court unchanged, there are at least twenty more pending cases around the country which seek to challenge the authority of unions to deduct union dues.

Many of these pending cases are spearheaded by the Center for Individual Rights, a conservative legal lobby which is already preparing legal action to have the split vote Supreme Court ruling reheard under different auspices.

The fact that the conservative corporate anti-union business sector of the nation is feeling emboldened by these continued legal attacks should come as no surprise in view of the steadily pro-corporate rulings of the Supreme Court in recent years. 

But even these recent court rulings appear to have been following a long trend of pro-business SCOTUS decisions over the course of American history.  The entire notion of “corporate personhood” is a shining example of this corporate trend.

The notion of a corporation as a “person” obviously has to take some sort of legal form—corporations have to have some sort of persona in which they can sue and be sued in the legal system.  The notion probably dates to medieval times when the Church had to pursue its interests in a secular world. In the United States the notion began early, with a ruling in 1790 that established the mechanism for this legal stature.   Therein followed Marshall v Baltimore and Ohio Railroad in 1853, wherein The Supreme Court upheld the notion that corporations were citizens, but only for the purposes of court jurisdiction;  thereafter followed the Crown Jewel of the corporate personhood cases, County of Santa Clara v Southern Pacific Railroad, in which the railroad, and subsequently by consequence all corporations, sought to have the “Equal Protection”  clauses of the 14th Amendment of the US Constitution applied to themselves.  Robber baron corporations now had the same protections as freed slaves.

In one of those strange quirks of history, the former railroad man who was at the time the court reporter for the Supreme Court wrote in the published notes of that case that the 14th Amendment did in fact apply to the company, even though this appeared nowhere in the Court’s actual ruling in the case. But it had been inscribed unto the Laws of The Land:  Eleven years later the Court ruled that the issue of corporate personhood via the Equal Protection Clause was “well settled” and, per Chief Justice Morrison Waite, "The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”

It’s been all downhill since then (or perhaps uphill for the corporations), but one could say that “equal protection” really went to crap for the rest of us with three decisions –one from the conservative Rehnquist Court, and two from the equally conservative Roberts Court: 

1)   Kelo v. City of New London in 2005, which granted the right of "eminent domain to transfer land from one private owner to another private owner to further economic development.”   The Court held that the general benefits a community enjoyed from economic growth qualified private redevelopment plans as a permissible "public use under the Taking Clause of the Fifth Amendment" [from Wikipedia]

Already this ruling has been used to justify construction of oil and natural gas pipelines in the country, notably the infamous Keystone pipeline from Canada, as well as a host of other “economic developments”.  One case in Texas even allowed for a large hotel chain to acquire beach front property from a small landowner.

It must be said that the majority vote in Kelo came from the “liberal” justices—Kennedy, Breyer, Ginsburg, Souter, and Stevens.

2)   Citizens United v Federal Election Commission in 2010, wherein the government could not restrict the “free speech” of corporations and associations via political campaign expenditures. Granted, this also applied to labor unions.

Henceforth, the concept of corporate personhood was extended to a strange definition of “free speech” for the corporations, a definition which was defined in regards to political expenditures, and the more one spent, the freer ones corporate speech became.

3)   McKutcheon v Federal Election Commission in 2014. Citizen United provided a legal precedent for this third corporate-centric case. In McKutcheon, the Roberts Court removed all limits to campaign spending by the corporations or associations (read this as “Political Action Committees”).

It must be said, however, that the McKutcheon case did not remove the campaign donation restrictions for individual political contributions, which remain fixed at $2600 per individual per election.  It became pretty obvious that corporate “free speech” was just a wee bit freer than individual free speech.

It is becoming increasing obvious to the innocent bystander that not only is the entire concept of judicial precedent being used to further increase corporate wealth and power in American jurisprudence, exerting a profound and undue influence in the name of “law”, but also that somehow the entire American judicial system has appeared to lose its way, where now the “rule of law” has become more specifically the “rule of capitalist law”. 

In the criminal legal system, it has always been obvious that the rich have been more immune to punishment and the poor have always gotten the shorter end of the proverbial legal stick, but now it is apparent that the entire American legal and political system has become a tool by which the wealthy and the corporations are literally able to purchase the legal rulings of their choice. 

The Supreme Court, as the “supreme law of the land”, continues to demonstrate the supreme collective power of the 1%.