The Trump administration - with the active support of and the then GOP-controlled Senate led by Mitch McConnell - was able to appoint three right-wing judges to the Supreme Court. Given their well-documented ideological biases and relative youth, they will likely continue to bedevil and distort this country's jurisprudence and further erode respect for the rule of law for many decades into the future.
It is this concern that has promoted Massachusetts Senator Markey and a number of House Democrats to advocate expanding the size of the Supreme Court by four additional judges. This proposal - - as well as other suggestions such as the imposition of term limits - could be accomplished by legislation that would require only a simple majority of both house of the U.S. Congress. Is this legislation necessary?
The unanimous decision of the United States Supreme Court in the matter of Integrity Staffing Solutions, Inc. v. Busk, et al , 574 U.S. ___ (2014) is compelling evidence that the self-proclaimed commitment of the American legal system to equal justice is little more than a sham embellished by platitudes.
The question before the court was whether the employees - warehouse workers who retrieved inventory and packaged it for shipment to Amazon customers - were entitled, as hourly, non-exempt employees - to be paid for time that they were required to undergo anti-theft security screenings before they were allowed to leave the warehouse in which they worked each day.
The record before the court showed that the class of employees who brought suit under the Federal Fair Labor Standards Act of 1938 (FLSA) were routinely required to submit to security inspections and screenings that amounted to "roughly 25 minutes per day" after they had checked out but before they could go home. The employees alleged that the screenings were conducted "to prevent employee theft" and they were intended solely "for the benefit of the employers and their customers." The additional uncompensated time, based upon a five day work week, amounted to an additional 6.8 hours at the workplace each week.
In proceedings below, the U.S. District Court for Nevada dismissed the complaint of the employees for a purported failure to state a claim under Fed. Rule Civ. Procedure 12. The court held that "the time spent waiting for and undergoing security screenings was not compensable under FLSA" because the employees could not show that the screenings were an indispensable and principal part of the activities that the employees were required to perform."
The United States Court of Appeals for the Ninth Circuit reversed the district court's decision, finding that "postshift activities that would ordinarily be classified as noncompensable postliminary activities are nevertheless compensable as integral and indispensable to an employee's principle activities if postshift activities are necessary to the principal work performed and done for the benefit of the employer," as the record before the court showed.
Inexcusably, the Obama administration - despite the consistent support that it received from organized labor - joined the employer's appeal and urged that the decision of the Ninth Circuit Court of Appeals be reversed. Writing on behalf of court, Justice Thomas disagreed with the Court of Appeals. In an extensive and tortured exegesis of the language of the Portal-to-Portal amendments to the Fair Labor Standards Act that were passed by a Republican-controlled Congress in 1947 to exempt employers from liability for future claims for "activities which are preliminary to or postliminary to said activities or principles," Thomas insisted that question was the sole question before the court.
The Court's holding was not surprising, given Justice Thomas' narrow definition of what he and the other eight judges agreed was the sole issue before the court. Thomas opined that "the security screenings at issue here are noncompensable postliminary activities" because "Integrity Staffing did not employ its workers to undergo screenings" and that the "screenings were not integral and indispensable"' to the employees' duties as warehouse workers.
Left unanswered were the obvious questions: What would have happened if the employees refused to wait for the screenings and insisted upon their right to go home immediately after they finished work? Would they still be employed the next day?
Historically, those nominated as justices to the Supreme Court, with precious few exceptions, have had little experience litigating cases on behalf of employees or fighting for the rights of the downtrodden. With one or two exceptions, this is true of the current court. In addition, as graduates of elite law schools with successful prior careers in the private and public sectors, Supreme Court justices have cultivated scores of influential and well-heeled friends and acquaintances over the years whose values they share. One also suspects that they have never forced to stand in a line to purchase concert tickets or have ever shopped at Walmart.
For their efforts, the eight associate justices are paid $213,000 per annum; the chief justice receives a salary $223,500. The justices enjoy life tenure for good behavior; their pensions will never be lower than their exiting salary should they choose to retire; they enjoy the same generous healthcare available to all federal employees; they have opportunities to travel to all judicial districts throughout the United States and its overseas territories at taxpayer expense; and they enjoy a minimum of 3 full months of vacation each year. For those reasons, the chasm between the nine judges in the court and the hard-scrabble hourly employees who toil for Amazon in its warehouses is vast, but is it asking too much to expect a little empathy?
The American legal system has long been a captive of the powerful, the wealthy and the well-connected, and almost uniformly hostile to unions and to the rights of workers. Throughout the nineteenth century, most state and federal courts treated labor unions and strikes as illegal conspiracies in restraint of trade. In addition, during the later part of the nineteenth century - in an era dominated by the Social Darwinism espoused by William Graham Sumner and Herbert Spencer - U.S. courts created out of whole cloth the doctrine of employment-at-will. That doctrine was a legal fiction that repudiated the long-standing presumption set down by Blackstone in his Commentaries that any indefinite employment contract was for one year.
Forty-nine states - with the exception of Montana (which has abolished at-will employment by statute) - still subscribe to that legal concept.
The legal fiction of at-will employment essentially posits an equality of bargaining power between individual employers and employees: Each is free to accept or reject employment, resign or be fired without cause or restriction. However, since employers in "union-free" environments are legally permitted to unilaterally impose, almost without restriction, whatever conditions of work they require as to hours, compensation, and often restrictions on re-employment after discharge in the form of non-competition agreements, the relationship is most often one of inequality in which the employees are burdened and the employers benefitted
In the latter part of the nineteenth century, the Supreme Court also chose to grant the equal protection of the laws to corporations long before the same civil rights were accorded to black Americans in the Southern States. In Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394(1886), the Supreme Court, in some inscrutable way, divined that corporations were persons within the meaning of the Fourteenth Amendment. (Incredibly, that decision was introduced into the report of the decision by the case law reporter in the syllabus, and it appears nowhere in the text of the decision.) According to the observers, Justice Waite simply pronounced from the bench, sua sponte, before the beginning of argument that "This court does to wish to hear argument on the question whether the provision of the Fourteenth Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the law, applies to these corporations. We are of the opinion that it does."
That decision was especially perverse in that the court was generally hostile to all claims for the enforcement of equal rights claims of the those recently freed slaves, as guaranteed by the Fourteenth Amendment, and ten years later would decide the infamous case of Plessy v. Ferguson, 163 U.S. 537 (1896). Once again the protection of property rights was held to be more vital than the protection of living human beings.
At the beginning of twentieth century, the United States Supreme Court enthusiastically adopted Herbert Spencer's unequivocal defense of the rights of free contract in the infamous case of Lochner v. New York, 198 U.S. 45 (1905). Writing for the majority, Justice Peckham struck down a New York statute which prohibited employers from requiring employees to work in excess of a sixty hour work week. Disingenuously, the Court found that, "The employee may desire to earn the extra money which would arise from his working more than the prescribed time, but this statute forbids the employer from permitting the employee to earn it. The statute necessarily interferes with the right of contract between the employer and employees concerning the number of hours in which the latter may labor in the bakery of the employer..."
Justice Holmes, in dissent, unsuccessfully sought to remind his colleagues that the law was supposed to be an even, impartial instrument, blind to prevailing ideology: "This case is decided upon an economic theory which a large part of the country does not entertain....The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics."
Later, the administration of Franklin Roosevelt found itself engaged in a tug-o-war with equally reactionary federal jurists. After three adverse decisions in Humphrey's Executor v. United States, 295 U.S. 602 (1935), Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935), and Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), in which the Supreme Court struck down New Deal legislation, Roosevelt filed legislation to increase the size of the court. In response to that threat, a majority of the jurists wisely chose to reverse course and opted not challenge subsequent legislation.
Since the 1970s especially, an increasingly reactionary federal judiciary has repeatedly announced its hostility toward government regulation, civil rights, and legislation in the public interest. The net effect of this jurisprudence has been to unravel the gains of the New Deal and the Great Society, to empower corporations and the disproportionately influential while ratifying the status quo.
Perhaps the most influential of these right-wing judges was Lewis Powell, Jr. who was appointed by President Nixon as an Associate Justice in 1972. Powell, who wrote over 500 opinions, was especially instrumental in helping to orchestrate the court's pro-corporate reconstruction of the First Amendment in the area of campaign finance law, which culminated years later in the 2010 Citizens United decision. Months before his appointment, Powell wrote a confidential memorandum to his friend and neighbor, Eugene Sydnor Jr., who was the chairman of the U.S. Chamber of Commerce education committee. Powell's memorandum was entitled "Attack on American Free Enterprise System." In that memorandum he wrote, "No thoughtful person can question that the American economic system is under broad attack," Powell began his analysis. "There always have been some who opposed the American system, and preferred socialism or some form of statism (communism or fascism)." "But now what concerns us," he continued, "is quite new in the history of America. We are not dealing with sporadic or isolated attacks from a relatively few extremists or even from the minority socialist cadre. Rather, the assault on the enterprise system is broadly based and consistently pursued. It is gaining momentum and converts."
To respond to this crisis, Powell recommended a stealth agenda of incrementalism to roll back environmental and work place regulations, and to counter the civil rights and anti-war movements. His memorandum and proposed agenda were enthusiastically embraced by the Charles and David Koch and Richard Mellon Sciafe who, through their enormous, tax-free contributions to the Heritage Foundation and the CATO Institute, advanced Powell's policy goals and inspired a right-wing insurgence.
Other influential right-wing federal judges have used other forms of sophistry to rationalize their hostility to government regulation in the public interest. The late Antonin Scalia espoused an almost theological commitment to the legal fiction of "original intent." A recent invention, the doctrine of "original intent" is especially destructive. As articulated by its proponents, it attempts to impose a requirement that laws must be analyzed within the framework of an eighteenth century worldview.
In the guise of a purported respect for the understanding and interpretation of the U.S. Constitution which the Founding Fathers evinced, the doctrine of original intent is, in actuality, a most radical form of judicial activism since it ignores the explicit language of the "necessary and proper clause" of Article 1,§ 9, c.18 of the U.S. Constitution; and it imposes the dead hand of the past, in the form of a fossilized litmus test, upon an instrument which, since time of John Marshall, had been viewed as a living, evolving document.
"Original intent" thus represents a kind of constitutional death-wish. It would, if routinely applied, induce rigor-mortis in the country's legal institutions and perpetuate the advantages which the advantaged already enjoy. Through the use of "original intent," apologists for the status quo have devised an analytical technique that is designed to emasculate this country's foundational document; it also condemns the federal judiciary to the role of a negative, obstructive partisans. The judges and legal scholars who espouse the "original intent" doctrine have thus forged a judicial hammer to batter down any legislative efforts to level the playing field or to promote equality of opportunity.
Although many of these right-wing jurists profess consternation about exercise of power by the federal government in a professedly democratic society, they appear to have few concerns about the exercise of political and economic power by private unelected interests. Rarely have Justices Thomas, Roberts, retired Justice Stevens, Alito, Kavanaugh nor Gorsuch ever expressed any qualms about oligopolies, the growing specter of monopoly capitalism, or their increasingly anti-competitive and predatory practices, nor have they demanded the vigorous enforcement of existing U.S. anti-trust laws. Witness the Court's extraordinary decision in Ohio v. American Express, , 585 U.S. ___ (2018). In that five to four decision , the Supreme Court held that American's Express's anti-steering provisions - which, by contract, forbade merchants from attempting to dissuade cardholders from using Amex cards at the point of sale- a practice known as "steering" - did not violate federal antitrust laws.
resident Trump's selection of Neil Gorsuch, an ardent proponent of original intent, as Justice Scalia's successor, and Brett Kavanaugh, as Justice Kennedy's replacement, are vivid illustrations of the legal influence that the right-wing Federalist Society continues to exercise over federal jurisprudence. Their selections will, in all likelihood, over time seriously undermine the work of regulatory agencies such as the EPA, the FCC and the EEOC since they have questioned the legal precedent known as Chevron deference.
That doctrine stems from a 1984 Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc, 467 U.S. 837 (1984), in which the Justice Stevens held, without any dissenting opinions, that " If... the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute which suggests that courts should defer to federal agencies when it comes to interpreting vague or ambiguous laws defining their responsibilities."
n contrast to Justice Stevens and Kennedy, Judge Gorsuch and Judge Kavanaugh have well-documented difficulties reconciling their 18th century notions of jurisprudence with the regulatory regime necessitated by the legal demands of the twenty-first century. Gorsuch is critical of the growing body of administrative because the Founding Fathers, who did not anticipate the evolution of administrative law, neglected to mention it in text of the Constitution. For his part, Judge Kavanaugh has been a vocal critic of the Affordable Health Care Act and, true to his partisan roots as an unapologetic supporter of corporations and their prerogatives, has consistently voted as a judge D.C. Appeals Court to uphold challenges to environmental and labor laws.
Neither Justice Gorsuch nor Kavanaugh are alone in their hostility to the idea of government regulation, especially by the federal government, that is intended to protect and promote the public interest. As the editorial board of the New York Times warned, "The court's pro-corporation decisions are widening the chasm in power and wealth between the country's elite and everybody else."
Over the past decades, a majority of the Supreme Court have chosen to breathe new life into the Tenth Amendment, the effect of which is to further drive American jurisprudence back into the early decades of the nineteenth century when even the idea of minimal government regulation, ostensibly in the public interest, was unimaginable. See, for example, Justice Rehnquist's decision in U. S. v. Lopez,115 S. Ct. 1624, 131 L. Ed 2626 (1995). In that decision, by a 5-4 struck vote, the U.S. Supreme Court struck down a San Antonio gun conviction which occurred within a 100 yards of a school on the grounds that the interstate commerce clause did not apply. See also U.S. Term Limits, Inc. v. Thornton, et al, 514 U.S. 779 (1995), a case in which Justice Thomas came within a "whisker" of returning American constitutional jurisprudence to the Articles of Confederation.
Despite their professed admiration for the Tenth Amendment, however, a majority of Supreme Court judges since the 1970s have not hesitated to impose their personal political preferences for free-market, anti-regulation policies through the judicial feat of federal preemption of state laws and regulations to the contrary. Most of the laws and regulations preempted were designed by state legislatures to protect the rights of workers and consumers. In Marquette National Bank of Minneapolis v. First of Omaha Service Corp., 439 U.S. 299 (1978), for example, the U.S. Supreme Court declared state usury laws to be unavailing against credit card companies engaged in interstate commerce. The effect of that decision, therefore, was to permit credit card companies to exact whatever interest rates they wanted, to the detriment of ordinary Americans.
As another case in point, the U.S. Supreme Court's decision in Buckley v. Valeo, 424 U.S.1 (1976), has severely undermined public confidence in the political system. In that decision, the court upheld some modest limits imposed by the U.S. Congress upon individual campaign contributions. More importantly, however, the court held that campaign contributions by corporations and other large entities were protected by the U.S. Constitution. Congressional attempts to impose restrictions on the financial contributions by corporations and other organizations, because they conflicted with First Amendment guarantees of free speech, would, henceforth, invite strict scrutiny by the court and would require that a compelling state interest had to be shown to pass judicial muster. In First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), authored by Justice Powell, held that corporations have a First Amendment right to support state ballot initiatives.
Thirty years after the Buckley decision, an even more reactionary court declared that any restrictions upon campaign financing by corporations violate the free speech provision of the First Amendment. In Citizens United v. Federal Elections Commission, 558 U.S. 310 (2010), Justice Kennedy, writing for the majority in a 5-4 decision, reversed two previous precedents that had upheld modest campaign finance regulations. Justice Kennedy opined that the Court had previously recognized that First Amendment protection extended to corporations and that "under the rationale of these precedents cited, political speech does not lose First Amendment protection 'simply because its source is a corporation;" further "corporations and other associations, like individuals, contribute to the 'discussion, debate, and the dissemination of information and ideas' that the First Amendment seeks to foster."
Finally, the five member right-wing majority of the Supreme Court, after the appointment of fellow-traveler, Judge Gorsuch, in Epic Systems v. Lewis, , 584 U.S. ___ (2018), has gutted the ability of employees in private sector to engage in concerted activity to improve wages and the conditions of work free from individual compulsory arbitration agreements. In Janus v. AFSCME, 585 U.S. ___ (2018), the five ideologues simultaneously delivered a body-blow to the ability of public sector to require non-union members - whom they must still represent - to pay for their fair share of costs of administration, collective bargaining and grievance procedures. As Justice Kagan noted in the dissent, the Court's five member majority were "weaponizing the First Amendment."
Justice Kagan's observation is prescient for, in the long run, the continued elevation to individual rights to the detriment of the public interest will exacerbate the growth of anti-social individualism and further erode the bonds that have historically united Americans and hobble the ability of government, at all levels, to promote the general welfare.
Students of the law understand that there has always existed a tension between fidelity to the letter of the law and the dictates of justice. The ancients remind us that as citizens of a political community we are obliged to seek the summum bonum - i.e., the highest good, the ultimate end - which is synonymous with justice.
As the primary object of all human aspiration, true justice is something that can be achieved only through the law acting as an instrument of the social order. Thomas Aquinas, quoting Isodore, reminds us that "Laws are enacted for no private profit, but for the common benefit of citizens." Further, "A law, properly speaking, regards first and foremost the order of the common good..." Finally, Aquinas invokes Cicero to the effect that "'the object of justice is to keep men together in society and mutual intercourse.' Now this implies relationship of one man to another. Therefore justice is concerned only about our dealings with others."
Jacques Maritain, the French Catholic philosopher who followed in the footsteps of Thomas Aquinas, has emphasized that "the primary reason for which men, united in political society, need the State, is the order of justice. On the other hand, social justice is the need of modern societies. As a result, the primary duty of the modern state is the enforcement of social justice." Measured by that exacting moral standard, the federal courts have failed to protect the public
interest and have become pawns of the 1% and the flawed market ideology that promotes and advances their interests to the detriment of everyone else.