Supremely Elite: How Democrats Can Make the Justices a Winning Campaign Issue

By Eric Segall

[Disclaimer: With everything going on right now, I know there are much more urgent matters that need addressing than the role of the Supreme Court in the next election, but I’m not a doctor and don’t even play one on TV so I guess I will march on with what I know. My heart goes out to all those affected by the virus.]

As the 2020 general election approaches, Democrats should take heed that exit polls taken after the 2016 Presidential election showed that approximately one-quarter of Donald Trump supporters said the Supreme Court was the most important reason why they voted for him. Trump made the Justices a visible issue in the campaign by saying he would nominate people like the late Justice Antonin Scalia and by publicizing a list of potential Supreme Court nominees, most of whom belonged to the conservative Federalist Society. In September, 2018, just before the mid-term elections, 76% of people polled said the Supreme Court was “very important” to their vote. President Trump and the GOP are likely to politicize the Supreme Court again in the 2020 election.
Democrats cannot afford to be passive on this issue, but neither should they emphasize traditionally controversial legal topics such as abortion, gun control, and the separation of church and state. For example, Republicans have long used abortion successfully as a campaign issue. Instead, Democrats should focus on how the Supreme Court has been the best friend of the rich and powerful and the enemy of the middle class, the poor, and minority groups.

Journalist Adam Cohen details how the Justices have done the bidding of the wealthy in his excellent book “Supreme Inequality.” According to Cohen, for over four decades the Court has used its far-ranging powers to allow corporations and individual billionaires to inject unlimited money into our elections while at the same time misinterpreting federal statutes and the United States Constitution to disenfranchise minority voters, assist big business, and hurt middle-class and poor consumers.

After the Watergate scandal of the early 1970s, Congress passed bipartisan campaign finance reform limiting how much money wealthy individuals and large corporations could spend on national elections and created the Federal Election Commission to enforce those limits. Congress tried to cap both direct contributions to political candidates and expenditures supporting those candidates. Just a few years later, however, in Buckley v. Valeo, the Justices struck down the statute’s limits on so-called independent expenditures primarily on the questionable basis that those expenditures constituted pure speech that deserves full First Amendment protection.
Eventually, after a series of cases that went back and forth on how much leeway legislatures had to limit the influence of money on elections, the Justices held in Citizens United v. FEC, and subsequent cases, that large corporations, labor unions, and wealthy individuals could spend as much money as they want supporting political candidates as long as that spending was not directly coordinated with the candidates—a limit with virtually no teeth. The result of those cases is that large moneyed interests may spend as much money as they want on candidates they support and the issues they care about.
While the Court was busy invalidating limits on campaign spending by the rich and the powerful, it issued numerous decisions disenfranchising poor and minority voters. The Justices upheld voter identification laws despite no evidence that in-person voter fraud has ever been a problem in state and federal elections; it allowed states to purge voter rolls which had a disproportionate effect on the least wealthy voters; and in its most important election-related opinion, the Justices struck down a key provision of the Voting Rights Act allowing states with long histories of targeting minority voters to once again pass laws making it much more difficult for people of color to vote.
The Supreme Court has also been the enabler of the rich and powerful in numerous legal arenas outside election law. For example, two important ways consumers can require corporations to comply with the law are through lawsuits awarding punitive damages for the most reprehensible business conduct and class actions where thousands of injured people incur relatively small damages that are unlikely to generate individual lawsuits but can support class action suits. As Cohen demonstrates, in both areas of the law, the Justices have made it much harder for injured consumers to prevail.

As to punitive damages, the Court has used the vague text of the Fourteenth Amendment’s Due Process Clause to reduce large punitive damages awards in such high profile cases as the Exxon Valdez disaster, where a drunk ship captain caused severe environmental damage. In that lawsuit, the Justices reduced a five-billion-dollar award to five-hundred million dollars, an amount that Exxon barely noticed. More importantly, the decision sent a message to businesses of all kinds that they need not fear large punitive damages verdicts no matter how terrible their actions and what damage they cause.
As to class action suits, the Court misinterpreted the 1926 Federal Arbitration Act to allow corporations to require consumers to sign contracts waiving their right to file class actions and proceed by individual arbitration despite state laws making such contracts illegal. The Justices reached that decision even though the Act expressly states that nothing in the law was intended to supersede conflicting state law. Both decisions help big business and hurt injured plaintiffs.
There is no doubt the GOP will once again inject the Supreme Court into the 2020 election. Rather than fight that battle on the familiar territory of guns, religion, and abortion, Democrats should emphasize how the Justices represent the interests of the rich and powerful instead of voters, consumers, and minority groups.