China’s economy is rebounding. The Dodgers reach the World Series. And the Supreme Court may be about to get even friendlier to corporations.
Amy Coney Barrett didn’t duck every substantive question that senators asked at her confirmation hearing last week. When an answer seemed obvious enough to her, she gave it.
She condemned white supremacy, said smoking caused cancer and praised Brown v. Board of Education, the Supreme Court case outlawing school segregation, as a “super-precedent.”
But there were a couple of striking moments when Barrett would not offer clear answers. She called climate science “controversial,” a view that few scientists share. And she declined to say whether Medicare — the popular health-insurance program for older Americans that has existed for more than 50 years — was legal.
“Well, let’s see.” Barrett said, when Senator Dianne Feinstein asked whether the program was constitutional. “I can’t answer that question in the abstract because, as we’ve talked about, the ‘no hints, no forecast, no previews’ rule.” In other words, the legitimacy of Medicare was a sufficiently open question that Barrett did not want to address it, because she might have to rule on it.
It was a preview of just how aggressive a Supreme Court with Barrett may be.
A struggle for power: Much of the discussion about Barrett’s nomination has focused on social issues, like abortion, guns and same-sex marriage. They’re all important, obviously. But they are not the issues that animate many activists and wealthy campaign donors who have spent decades pushing for a conservative overhaul of the courts.
To these activists — the most famous being the Koch family — the overriding goal is reducing corporate regulations and taxes. As Charles Koch said in one speech, he wants to stop “confiscatory taxation,” “safety and health regulations,” “trade barriers,” “so-called equal opportunity requirements” and “many more interventions.”
Koch gave that speech in 1974, and in the almost five decades since, the conservative judicial project has made a lot of progress. The Supreme Court and lower courts have made it harder for labor unions to organize, harder for consumers and workers to fight corporate fraud and easier for wealthy Americans to give millions of dollars in campaign donations, often secretly.
These rulings are one reason that the incomes of the very rich have risen so much faster in recent decades than incomes of the middle class and poor. “For the past half-century, the Court has been drawing up plans for a more economically unequal nation,” Adam Cohen, a former member of the Times editorial board, wrote in his recent book, “Supreme Inequality.”
Barrett’s answers suggest she may make the court even friendlier to big companies. She would be the sixth Republican-appointed justice, which means one of them could defect and the court could still rule against regulation or taxation.
A 2007 decision, in which Anthony Kennedy joined the liberal justices in allowing the government to regulate carbon emissions, may be in jeopardy. So is Obamacare, which John Roberts joined the liberals to uphold. If Barrett views both Medicare and climate science as questionable, it’s easy to imagine her rejecting many longstanding laws and regulations.
And she will be joining the court when many Democrats, including Joe Biden, believe the federal government should do more to lift middle-class living standards and fight climate change. Biden wants to reduce carbon emissions sharply, strengthen labor unions, raise taxes on the rich, make college and health care more affordable and more.
Polls show that a majority of voters support most of these policies. But conservative judges like Barrett generally do not, and they have been willing to strike down laws they don’t like. It is an echo of the so-called Lochner era of the early 20th century, when the Supreme Court threw out laws on the minimum wage, child labor or other business regulation.
So get ready for a big, long fight over the American economy, with the Supreme Court at the center of it all.
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