A Vicious Right-Wing Supreme Court Helps the Neoliberal Empire Strike Back
"With fear for our democracy," said Justice Sonia Sotomayor, "I dissent."
Following twin court rulings Monday, the Washington Post should update its “Democracy Dies in Darkness” banner. The MAGA Supreme Court has coldly and emphatically demonstrated this term that both democracy—and many of the public protections American families and workers count on—die in public, but only if we let it.
The cascade of disastrous and even deadly rulings will rightfully put a long-term stain on what is likely the most far-right Supreme Court since the monstrous days of Jim Crow. Especially if Trump is allowed to return to office and run a bulldozer over every vestige of what has constituted political and legal norms in the nation for at least the past half century.
But, there’s another point that much of the torrent of coverage has somewhat overlooked. Opponents of Trump and Trumpism have held out hope that the Republican Party old guard would somehow wake up and cast aside the wannabe dictator they have unleashed on the country.
Our challenge is to support legislation to reverse these decisions, and to defeat Trump and everything Trumpism and neoliberalism stands for in November.
Especially in its cascade of decisions “kneecapping the administrative state,” as Slate writer Mark Joseph Stern puts it, the Court has unambiguously embraced a principle goal of solidifying in legal precedent pro-corporate neoliberal policies that drove much of traditional Republican philosophy, especially since the first days of the Reagan administration. The centerpiece was the Court’s ruling in Loper Bright Enterprises v. Raimondo reversing the so-called 1994 Chevron deference case under which regulatory agencies were given authority to interpret, implement, and enforce ambiguous laws passed by Congress. The Court’s ruling effectively signals that the neoliberalism empire has struck back.
It marks a massive triumph for deregulation that Sherrilyn Ifill, law professor and former president and director-counsel of the NAACP Legal Defense Fund, aptly termed “a seismic shift in how U.S. government operates,” with “devastating and potentially catastrophic” consequences.
The traditional Wall Street wing of the Republican Party (which also mostly governs the Democratic Party establishment) had already, despite some ballyhooed misgivings over Trump’s multitude of criminal and autocratic behavior, welcomed Trump’s one major accomplishment of his first term — the massive tax gift for big business and the uber rich.
No doubt already salivating over Trump’s pledge to extend and expand his 2017 law, which slashed the corporate tax rate from 35 to 21 percent and handed the 296 most profitable corporations a $240 billion dollar tax present, the corporate tycoons and their most devout legislators now have another reason to hug Trump tightly. That would be the vision of agencies—purged of perceived enemies—overseeing environmental, food safety, workplace standards, worker and union rights, and so many other critical protections eliminated by a new Trump administration stacked with Trump cult loyalists.
They can also probably be ready to overlook the new power the Court on Monday granted Trump to emulate the worst criminality of Mussolini, Franco, or King George (what was that 1776 ruckus about anyway?). As Chief Justice Roberts wrote, Trump gets “a presumptive immunity from prosecution for all his official acts.” As if Trump or his enablers will ever really distinguish official from non-official acts. The Strict Scrutiny podcast offers probably the best analysis.
In her dissent, for once dropping the polite “respectfully” from her dissent wording, Justice Sonia Sotomayor made the consequences abundantly clear.
When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organize a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune. Immune… Never in the history of our Republic has a president had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy, I dissent.
Will the neoliberal establishment be at peace with a dictator like Pinochet? We now know the answer to that question. Citing political historian Karl Polanyi, American Prospect co-founder Robert Kuttner in 2019 warned, “in regimes that border on neofascist, klepto-capitalists get along just fine with dictators, undermining the neoliberal premise of capitalism and democracy as complements.”
Neoliberalism has a few godfathers, beginning with Austrian academic Friedrich Hayek who in the late 1930s and 1940s was railing against President Roosevelt’s New Deal and Britian’s post-World War II embrace of such reforms as creation of the National Health service, as “manifestations of a collectivism,” wrote George Monbiot.
Another was infamous economist Milton Friedman, who in a celebratory tour of apartheid South Africa in 1976, wrote Zachary Carter, delivered a diatribe against “political democracy—an explicit rejection of, in Friedman’s words, ‘one person, one vote,’ delivered to a nation in which more than half of the population was disenfranchised by race.”
Will the neoliberal establishment be at peace with a dictator like Pinochet? We now know the answer to that question.
Hayek and Friedman both enthusiastically embraced Pinochet’s brutal coup and subsequent repressive policies in Chile. In “Democracy in Chains,” historian Nancy MacLean notes Hayek visited Pinochet, voicing distaste with “unlimited democracy,” and Friedman endorsed his policies of “shock treatment.” Economist James Buchanan, also a prominent advocate of neoliberal policies, helped guide Pinochet’s rewrite of his country’s constitution to put democracy “in chains,” which to this day continues to hamstring efforts at political reform in Chile.
In advocating market fundamentalism, Hayek and Friedman, says Kuttner, “promoted rules created by and for private owners of capital, to keep democratic government from asserting rules of fair competition or countervailing social interests.”
Thus, the tenets of neoliberal policy—lifting all constraints from capital, of which deregulation is a central focus, privatization, austerity through starving, if not outright elimination, of social programs, and decapitating worker resistance with a frontal attack on unions and worker’s rights. Neoliberalism in the U.S. was a counter revolution to progressive government social and political reforms of the 1950s and 1960s that raised standards of living, especially for white American workers and families.
One starting date was the infamous 1971 Powell Memo, authored by future Supreme Court justice Lewis Powell who called for political combat: “Business must learn the lesson . . . that political power is necessary; that such power must be assiduously cultivated; and that when necessary, it must be used aggressively and with determination.”
While President Jimmy Carter carried out some deregulation, especially on airlines, it was President Ronald Reagan who supercharged neoliberalism. His first act, notably, was to break the air-traffic controllers’ union, firing the federal employees who had gone on strike and presiding over decertification of their union. Chevron, explains Ian Millhiser, was originally established by the Supreme Court in 1984 to limit decisions by lower federal courts dominated by Democratic appointees who were “prone to striking down the Reagan administration’s deregulatory actions.”
It matters when those administrative agencies are staffed by scientists who write rules to limit toxic smog, and other experts who work to ensure that health plans cover basic medical services, ensure the safety of drugs and protect consumers from risky corporate financial behavior,” as they were especially under President Biden, and not by opponents of regulatory public protections, such as Reagan and Trump.
Other Democratic presidents have been co-signers of deregulation and other elements of neoliberalism, notably President Clinton with his deregulation of key banking regulation that led directly to the 2008 financial meltdown. But Biden has attacked much of the underpinnings of neoliberalism in his most important domestic policies.
In his first address to Congress, Biden, unlike Clinton, vigorously defended the role of government, saying “public investment and infrastructure has literally transformed America,” bringing us railroads, highways, schools, colleges, vaccines, the internet, and “so much more.” As Eric Levitz wrote last year, “this defense of state intervention in markets crescendoed with the declaration that, in our democracy, the government is 'you and I' and not some powerful force that we have no control over. It’s us.”
Even in the face of obstruction from nearly unanimous Republican opposition, and limits by conservative Democrats, Biden successfully shepherded passage of major legislation extending aid for families devastated by the pandemic, and enacted critical health care reforms, especially for seniors, and a major infrastructure program. His agencies also initiated challenges to corporate malfeasance such as anti-trust challenges and price gouging that were a major cause of inflation. And, of course, Biden was the most pro-labor president, especially his policies through the National Labor Relations Board and Occupational Safety and Health Administration, since at least President Roosevelt.
That was the intended target of the Court’s anti-regulatory cases, attacking the Environmental Protection Agency, the Security and Exchanges Commission, and all other administrative agencies in the Looper Bright case, transferring authority to the courts, especially the MAGA court.
Under that decision, Millhiser explains “questions like whether a product derived from red rice yeast, which purportedly helps promote healthy cholesterol levels, counts as a “drug” or a “dietary supplement” under federal law? Under Chevron, this question would be decided by FDA officials who’ve spent decades studying drugs and dietary supplements. Now it will be resolved by political appointees with law degrees and black robes.”
It is no coincidence that the Koch network were the main financial backers of the case that formed the basis of Looper Bright. The billionaire Koch brothers, who built their massive wealth through the fossil fuel industry have a direct line from decades of also funding an entire academic and legal industry of neoliberalism and deregulatory challenges in particular.
Law professor Kate Shaw adds, “an error in one of this week’s opinions provided a stark illustration of the costs of the court’s lack of expertise: On Thursday, in the case dealing with the Environmental Protection Agency—Ohio v. E.P.A.—the released version of the majority opinion made five references to “nitrous oxide,” commonly referred to as laughing gas, rather than the “nitrogen oxide” compounds at issue. The error was quickly fixed, but no agency official working on the regulation of this compound would have made such an error—and in many ways that is Chevron’s whole point.” She also noted the tortured and factual misleading explanations the court majority concocted to justify its pro-gun violence ruling defending murderous bump stocks.
The Court even found a way Monday to make it worse with a follow-up ruling. In a decision that handed corporations even more time to challenge regulations, “ruling that a six-year statute of limitations for filing lawsuits begins to run when a regulation first affects a company rather than when it is first issued.” But in reality, the Strict Scrutiny law professors said, the decision “massively expands the amount of time that essentially anybody has to challenge an agency rule if they don’t like it. Even if the rule has been on the books for years or decades.”
In her dissent, Justice Ketanji Brown Jackson noted, “the court’s baseless conclusion means there is effectively no longer any limitations period for lawsuits that challenge agency regulations… Allowing every new commercial entity to bring fresh facial challenges to long existing regulations is profoundly destabilizing for both government and businesses. It also allows well-heeled litigants to game the system by creating new entities or finding new plaintiffs whenever they blow past the statutory deadline.”
Amidst the wreckage of this decision, we also have to point to the weak defense of public safety regulation by decades of too many Democratic elected officials, and the broader public.
With the arrival of summer, many families plan family visits to county fairs, amusement parks, or traveling carnivals. They’ll hop on roller coasters and other thrill seeker rides probably not dwelling on what keeps them safe on those sometimes aging, rickety contraptions. I spent two summers in my youth working for a traveling carnival, marveling at all those people lining up for journeys on clearly dubious, creaking machines.
Whether federal, state or local regulatory agencies, most Americans assume someone is looking out for their safety. We rely on public oversight and enforceable standards and rules established by experienced and expert civil servants at regulatory agencies.
We rarely stop to think about the importance of what these agencies do, but we ignore their key role at our peril. As Georgetown University Law Center professor Lisa Heinzerling, who previously served in the EPA, told Slate “people care when their drinking water is contaminated with lead. They care if their medicines aren’t safe and effective, or if somebody takes all the money out of their investment accounts.” Or when you board a plane and hope the doors don’t fly off today, or go to a hospital for emergency medical care when you can’t breathe because the local refinery released toxic emissions into the air.
It’s time to care. It’s long past time to mount that defense of the positive role government and regulatory work in the public interest can and must do. Our challenge is to support legislation to reverse these decisions, and to defeat Trump and everything Trumpism and neoliberalism stands for in November.
