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The Frightening Prospect of a Romney Court

A Romney-Ryan-Bork Court would be a dream for the 1% and the far-right, but a nightmare for everyone else in America.
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American University Law Prof, MD State Senator, People For the American Way Senior Fellow

American University Law Prof, MD State Senator, People For the American Way Senior Fellow
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FILE - This Oct. 8, 2010 file photo shows the justices of the U.S. Supreme Court in a group portrait at the Supreme Court Building in Washington. The Supreme Court is embarking on a new term beginning Monday that could be as consequential as the last one with the prospect for major rulings about affirmative action, gay marriage and voting rights. Seated from left to right are: Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy, Associate Justice Ruth Bader Ginsburg. Standing, from left are: Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr., and Associate Justice Elena Kagan. (AP Photo/Pablo Martinez Monsivais)
FILE - This Oct. 8, 2010 file photo shows the justices of the U.S. Supreme Court in a group portrait at the Supreme Court Building in Washington. The Supreme Court is embarking on a new term beginning Monday that could be as consequential as the last one with the prospect for major rulings about affirmative action, gay marriage and voting rights. Seated from left to right are: Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy, Associate Justice Ruth Bader Ginsburg. Standing, from left are: Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr., and Associate Justice Elena Kagan. (AP Photo/Pablo Martinez Monsivais)

The frightening and destructive magnitude of Hurricane Sandy has affected tens of millions of Americans this week. As people now attend to their basic immediate security and needs, they also have the chance to reflect on the magnitude of the presidential election, whose long-term consequences are frightful.

One reality that sinks in quickly is that, while a presidential administration is for four or eight years, Supreme Court and other federal judicial appointments last for decades.

Consider the lasting imprint left by the most recent "compassionate conservative" to take the White House. In his first term, President George W. Bush named 203 judges to the federal bench: 168 on the district courts and 35 on the circuit courts of appeals. In his second term, Bush added another 119 judges to the federal bench, 93 district and 26 circuit judges, for a grand total of 322 federal judges.

When you throw in Chief Justice John Roberts and Associate Justice Samuel Alito, Bush's picks for the Supreme Court, George W. Bush's appalling legacy lives on through 324 federal jurists. Today's Supreme "corporate" Court was made possible by Bush, whose election, in turn, was made possible by five Republican-named justices who shut down the counting of Florida ballots in Bush v. Gore (2000).

So let's say Mitt Romney gets to name a few hundred federal judges and three or four Supreme Court Justices to replace several who are way past the average retirement age for American workers, including Ruth Bader Ginsburg, who is 79. What difference could it make?

Well, let's take Mitt Romney at his word. The Justices he cites as his favorites are also the most extreme: Scalia, Thomas, Alito. He reached back into the 1980s to choose as his constitutional advisor Robert Bork, the right-wing polemicist and former Reagan Supreme Court nominee so extreme that he was rejected by a bipartisan coalition of Senators in 1987. Amazingly, Romney said that he wished Bork were "already on the Court."

A Romney-Ryan-Bork Court would lead to the uncorking of bottles of champagne throughout the boardrooms of America's largest and most right-wing corporations. We would see an acceleration of all of the worst trends already ravaging the prospects of justice for "natural persons" in America, including:

  • the destruction of what is left of campaign finance and disclosure laws as corporations assume all the political free speech rights of the people, a dramatic change ushered in by Citizens United in 2010;

  • the declaration of total corporate immunity from torts committed against people abroad in violation of international law, a possibility already facing us in theKiobel litigation (2012);

  • the complete demolition of consumers' rights to judicial relief in favor of corporate fine-print "adhesion contracts" forcing consumers into lopsided "arbitration" proceedings, a process launched in AT&T Mobile v. Concepcion (2011);

  • the continuing nullification of the rights of workers, consumers and victims of mass torts to seek justice through the class action mechanism, a vitally important procedural mechanism severely undermined by the Court in the Walmart case (2011);

  • a decimation of the right to organize in the workplace and a reestablishment, under the revitalized "corporate speech" doctrine, of the power of CEOs to force workers into closed-door "captive audience" speeches to propagandize them about how to vote in both national elections and union elections; and

  • a relentless gutting of environmental laws to please religious zealots who don't believe in the well-documented reality of global climate change and corporate executives who just don't care about it as long as it lines their pockets.

    • While large corporations would form the backbone of a Romney administration and dictate its judicial agenda, the Bork-defined Court would wage war on the major women's rights and civil rights decisions of the modern period, turning the clock back to times and places where America doesn't want to go:

    • Bork has said that it is a matter of the highest importance to restore the integrity of the Supreme Court by overturning Roe v. Wade and giving politicians the power to criminalize abortion;

  • Bork has questioned every major advance made by African Americans under the Equal Protection Clause and the Voting Rights Act, and a Bork-defined Court would almost certainly strike down Section 5 of the Voting Rights Act, the critical provision requiring jurisdictions to "pre-clear" with the Department of Justice or a federal court policy changes related to voting;

  • A Romney-Bork Court would destroy efforts to provide equal educational opportunities throughout our diverse nation;

  • Bork has denied as a matter of First Amendment principle that free speech extends beyond politics to art and literature, and has strongly endorsed a return to "censorship," suggesting that under Romney's Supreme Court the real freedom of speech belonging to people -- as opposed to corporations -- would be in trouble.
    • In sum, a Romney-Ryan-Bork Court would be a dream for the 1% and the far-right, but a nightmare for everyone else in America. Take a moment as we recover from hurricane Sandy to email all your friends and family and neighbors, and tell them that, when they vote, they have the chance to save the Supreme Court and justice in America for a long time to come.

    American University Law Prof, MD State Senator, People For the American Way Senior Fellow

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