LEGISLATING FROM THE BENCH: THE REAL G.O.P. AGENDA

By Ronald T. Fox

If you’re like me and inclined toward progressive politics, you likely continue to be amazed as to why so many Americans continue to vote for Republicans when many of their political beliefs and actions, especially on economic and financial issues, are so broadly unpopular. Solid majorities of Americans support gun control, regulating big banks, reducing greenhouse gasses, a woman’s right to choose to terminate a pregnancy, laws to protect public health and safety, a wider access to healthcare, raising the minimum wage, protecting voting rights, and a progressive tax system that makes corporations and wealthy individuals pay more. These are all issues where republican lawmakers have defied the majority will of the American people.

How do they continue to get away with it? I’ve written in the past on Phronesis about how our political system is structured to thwart majority rule, citing the disproportionate influence moneyed interests, which are easily expressed through a constitutional system that in the electoral college, the small state-dominated Senate, and state and local governments stifles majority sentiment. I’ve written about the impact of gerrymandering and the failure of out communication outlets to educate the public on the realities of power and influence in our governance. I’ve addressed the failure of the Democratic Party to address working class concerns. I've posted about white resentment of identity politics. I’ve even pointed to the stupidity of voters (though such condescending academic preaching admittedly contributes to alienating ordinary Americans).

These factors help explain how Republicans, and their wealthy backers, have been able to thwart popular progressive legislation and retain their solid, if primarily white, electoral base. Still it is astonishing how a political party that has no clear legislative agenda other than obstruction, campaigns without a platform, goes at length to tell us what they’re against rather than for, has been so successful in achieving a policy agenda skewed toward rewarding the few Americans with wealth and power.

Ian Nillhiser’s opinion piece in the April 2, New York Times offers a clue: the Republican Party relies on the judiciary. The Supreme Court’s conservative majority has for decades pushed an agenda that benefits corporations and the wealthy at the expense of the rest of us. Court decisions have advanced the Republican vision in which government is prevented from regulating business, protecting civil and voting rights, and providing a basic social safety net.  Why should Republicans operate openly in the messy political arena when they can quietly achieve goals through the courts? How many Americans are aware of, and can comprehend, complicated court decisions, or non-decisions when they refuse to hear a case? You get the point: legislating from the bench enables them to dodge accountability for unpopular policies.

The conclusion for progressives and liberal to draw from the current reality of judicial legislating is depressing, to say the least. With conservatives controlling the Supreme Court and much of our nation’s networks of federal, as well as state and local, courts, and with most justices relatively young, we face years of rulings destined to benefit wealthy private interests and the broader agenda of conservatives. This endangers President Biden’s agenda, but, more ominously, our cherished Democracy.

I’m including Nillhiser’s op-ed below as a guest commentary. For a fuller exploration of his thesis, read his book: The Agenda: How a Republican Supreme Court is Reshaping America.

Republicans Have an Agenda All Right, and They Don’t Need Congress for It

The G.O.P.’s program lives in the judiciary — and especially in the Supreme Court.

By Ian Millhiser

March 30, 2021

Not so long ago, Republicans had one of the most ambitious legislative agendas of any political party in modern American history.

Devised by the former House speaker, Paul Ryan, the so-called Ryan budget sought to reduce much of the nation’s social safety net to ashes. Congressional Republicans planned to slash Medicaid spending and food stamps. In the most aggressive version of Mr. Ryan’s proposal, Republicans would have replaced Medicare with “premium support” vouchers that could be used to buy private insurance, and then reduced the value of this subsidy every year — effectively eliminating traditional Medicare over time.

But all of that has changed. The Ryan budget is a relic. At their 2020 national convention, Republicans didn’t even bother to come up with a new platform.

Yet while the party appears to have no legislative agenda, it’s a mistake to conclude that it has no policy agenda. Because Republicans do: They have an extraordinarily ambitious agenda to roll back voting rights, to strip the government of much of its power to regulate, to give broad legal immunity to religious conservatives and to immunize many businesses from a wide range of laws.

It’s just that the Republican Party doesn’t plan to pass its agenda through either one of the elected branches. Its agenda lives in the judiciary — and especially in the Supreme Court.

From 2011, when Republicans gained control of the House of Representatives and denied President Barack Obama a governing majority, until the pandemic forced legislators’ hands in 2020, Congress enacted hardly any major legislation outside of the 2017 tax law.

In the same period, the Supreme Court dismantled much of America’s campaign finance law; severely weakened the Voting Rights Act; permitted states to opt out of the Affordable Care Act’s Medicaid expansion; expanded new “religious liberty” rights permitting some businesses that object to a law on religious grounds to diminish the rights of third parties; weakened laws shielding workers from sexual and racial harassment; expanded the right of employers to shunt workers with legal grievances into a privatized arbitration system; undercut public sector unions’ ability to raise funds; and halted Mr. Obama’s Clean Power Plan.

Now, a 6-to-3 conservative-majority Supreme Court is likely to reshape the country in the coming decade, exempting favored groups from their legal obligations, stripping the Biden administration of much of its lawful authority, and even placing a thumb on the scales of democracy itself.

Many of these changes would build on decisions handed down long before President Donald Trump reshaped the Supreme Court. The court, for example, first allowed employers to force workers to sign away their right to sue the company — locking those workers into a private-arbitration system that favors corporate parties — in a 2001 case, Circuit City v. Adams. But the court’s current majority is likely to make it much harder for workers and consumers to overcome these tactics. In Epic Systems v. Lewis (2018), Justice Neil Gorsuch wrote the court’s majority opinion favoring an employer that forced its employees to give up their right to sue.

Similarly, in the 2014 case Burwell v. Hobby Lobby, the Supreme Court held that businesses seeking a religious exemption from a law may have it — holding, for the first time, that such exemptions may be allowed even when they diminish the rights of others. That case permitted employers with religious objections to birth control to deny contraceptive coverage to their employees, even though a federal regulation required employer-provided health plans to cover contraception.

Before Justice Amy Coney Barrett joined the Supreme Court, however, a majority of the justices were very reluctant to grant religious exemptions to state regulations seeking to limit the spread of Covid-19. Yet after she became a justice, the court’s new majority started granting such exemptions to churches that wanted to defy public health orders.

It’s plausible that the Republican Party did not campaign on its old legislative agenda in 2020 because it was busy rebranding itself. Under Mr. Trump, Republicans attracted more working-class voters, while Democrats made gains in relatively affluent suburbs. So Mr. Ryan’s plans to ransack programs like Medicaid aren’t likely to inspire the party’s emerging base.

And yet the court’s conservative majority is still pushing an agenda that benefits corporations and the wealthy at the expense of workers and consumers.

It’s easy to see why government-by-judiciary appeals to Republican politicians. There’s no constituency for forced arbitration outside of corporate boardrooms. But when the court hands down decisions like Circuit City or Epic Systems, those decisions often go unnoticed. Employers score a major policy victory over their workers, and voters don’t blame the Republican politicians who placed conservative justices on the court.

Judges can also hide many of their most consequential decisions behind legal language and doctrines. One of the most important legal developments in the last few years, for example, is that a majority of the court called for strict new limits on federal agencies’ power to regulate the workplace, shield consumers and protect the environment.

In Little Sisters v. Pennsylvania (2020), the court signaled that it’s likely to strike down the Department of Health and Human Services’ rules requiring insurers to cover many forms of medical care — including birth control, immunizations and preventive care for children. And in West Virginia v. E.P.A. (2016), the court shut down much of the E.P.A.’s efforts to fight climate change.

Yet to understand decisions like Little Sisters and West Virginia, a reader needs to master arcane concepts like the “nondelegation doctrine” or “Chevron deference” that baffle even many lawyers. The result is that the Republican Party’s traditional constituency — business conservatives — walk away with big wins, while voters have less access to health care and breathe dirtier air.

By legislating from the bench, Republicans dodge accountability for unpopular policies. Meanwhile, the real power is held by Republican judges who serve for life — and therefore do not need to worry about whether their decisions enjoy public support.

It’s a terrible recipe for democracy. Voters shouldn’t need to hire a lawyer to understand what their government is doing.