We must unite to fight back against our country’s bullies
By Robert Reich, October 7, 2018
Brett Kavanaugh uses emotional bullying in an effort to get his way. | Erin Schaff / New York Times
As a kid, I was always a head shorter than other boys, which meant I was bullied — mocked, threatened, sometimes assaulted.
Childhood bullying has been going on forever. But America has become a culture of bullying — the wealthier over the poorer, CEOs over workers, those with privilege and pedigree over those without, the white over the brown and black, men over women.
Sometimes the bullying involves physical violence. More often it entails intimidation, displays of dominance, demands for submission, or arbitrary decisions over the lives of those who feel they have no choice but to accept them.
The hearing for Supreme Court nominee Brett Kavanaugh before the Senate Judiciary Committee on Sept. 27 was a window into our bullying culture.
On one side: powerful men who harass or abuse women and get away with it, privileged white men intent on entrenching their power on the Supreme Court, men vested with the power to take away a woman’s right to choose what she does with her body.
On the other side: women with the courage to tell what has happened to them, to demand an end to white male privilege, and to preserve and enlarge their constitutional rights.
Christine Blasey Ford was poised, articulate, clear and convincing. More than that: She radiated self-assured power.
Kavanaugh, by contrast, showed himself to be a vicious partisan — a Trump-like figure who feels entitled to do and say whatever he wants, who suspects left-wing plots against him, who refuses to take responsibility for his actions, and who uses emotional bullying and intimidation to get his way.
Even if Kavanaugh gets on the Supreme Court, a large portion of the American public will never trust him to be impartial. Many will never believe his denials of sexual harassment. Most will continue to see him as the privileged, arrogant, self-righteous person he revealed himself to be.
Which brings us to the upcoming midterm elections.
It’s not really a contest between Democrats or Republicans, left or right. It’s a contest between the bullies and the bullied. It’s about the power of those who are rich, white, privileged or male — or all of the above — to threaten and intimidate those who aren’t.
And it’s about the courage of the bullied to fight back.
Donald Trump is America’s bully-in-chief. He exemplifies those who use their wealth to gain power and celebrity, harass or abuse women and get away with it, lie and violate the law with impunity, and rage against anyone who calls them on their bullying.
Trump became president by exploiting the anger of millions of white working-class Americans who for decades have been economically bullied by corporate executives and Wall Street.
Even as profits have ballooned and executive pay has gone into the stratosphere, workers have been hammered. Their pay has gone nowhere, their benefits have shrunk, their jobs are less secure.
Trump used this anger to build his political base, channeling the frustrations and anxieties into racism and nativism. He encouraged Americans who have been bullied to feel more powerful by bullying people with even less power: poor blacks, Latinos, immigrants, Muslims, families seeking asylum.
This bullying game has been played repeatedly in history, by self-described strongmen who pretend to be tribunes of the oppressed by scapegoating the truly powerless.
Trump is no tribune of the people. He and his enablers in the Republican Party are working for the moneyed interests — the Koch brothers, Sheldon Adelson and other corporate and Wall Street chieftains — by cutting their taxes, eliminating regulations, slashing public services and allowing them to profit off public lands, coastal waters and privatized services.
The moneyed interests are America’s hidden bullies. They have enlarged their net worth by repressing wages (or pushing the companies they invest in to do so), and enlarged their political power through gerrymandering and suppressing votes (or pushing their political lackeys to do so).
Their capacity to bully has grown as the nation’s wealth has become concentrated in fewer hands, as the economy has become more monopolized, and as American politics have become more engulfed by big money.
It is time to fight back against the bullies. It is time to join together to reclaim economic and political power.
How Supreme Court Pick Brett Kavanaugh Could Return US Policy to the Era of Robber Barons
By Sharon Kelly • Wednesday, September 5, 2018 – 11:39
Judge Brett Kavanaugh. Credit: C-Span screen shot
As Judge Brett Kavanaugh’s Supreme Court nomination hearings get under way, understanding his appointment’s potential impacts for corporate regulation and the climate means looking back all the way to 1890.
That was when a nearly 50-year stretch known to legal historians as the “Lochner era” kicked off — a time better known in U.S. history as the age of the robber barons.
The Lochner era gets its name from a 1905 Supreme Court case, Lochner v. New York, which threw out state limits on the number of hours bakers could work in a week. This case’s reasoning was later overturned by the U.S. Supreme Court in a 1937 case that rejected a half-century of judicial thinking — doctrines that had led the court to toss out laws governing working conditions, creating food safety standards, and barring child labor.
In 1937, as the Great Depression raged, the Supreme Court faced pressure from President Franklin Delano Roosevelt, frustrated after the Court rejected 11 of 13 early New Deal programs as unconstitutional. The Constitution doesn’t say how many justices are allowed to sit on the Supreme Court — and FDR threatened to add enough justices to change the court’s leanings.
Not long after FDR’s threat, Justices Owen Roberts and Charles Evans Hughes joined majorities that rejected Lochner and found the new National Labor Relations Board constitutional — a move that’s gone down in legal history as the “switch in time that saved nine.” (Nine being the number of justices sitting on the Court.)
During the Lochner era, the Supreme Court followed a “non-delegation doctrine” that required Congress to play an active role in the most minute details of decision-making and policy-setting.
Bringing it back could have huge significance for how the U.S. regulates the environment, food safety, the Internet — and global climate change.
Bringing Lochner Back?
After the Lochner era ended, the Supreme Court allowed Congress, which writes the laws, to delegate the details of rules and regulations to government agencies in the executive branch, which enforces laws. So, for example, the U.S.Environmental Protection Agency (EPA) can decide just how much of a given chemical is safe in a city’s drinking water — and change those rules as new hazards are uncovered — without getting both houses of Congress to sign off on every detail.
Taken to the extreme, uprooting its ability to delegate could require Congress to write or approve every new federal rule and regulation, a herculean task in a country of over 300 million people. The House and Senate’s 535 members would also have to tackle jobs currently performed by dozens of federal agencies like the Food and Drug Administration (FDA), the Federal Communications Commission (FCC), and the Department of Agriculture (USDA).
But there are signs that the Supreme Court might allow the non-delegation doctrine to slip back into the law. In March, the Supreme Court agreed to review a case called Gundy v. United States, limiting its review to non-delegation issues.
And with Justice Kavanaugh shifting the court far to the right, that relatively obscure case might represent a major opportunity for corporations to chip away at the foundations of America’s regulations, including its environmental protections.
“This is a really important sleeper case,” Sean Hecht, a law professor at University of California, Los Angeles told McClatchy in June, before Kavanaugh was nominated on July 9. If the Supreme Court handed down a broad ruling, “[p]arties would feel emboldened to say, you can’t make us do this under the Clean Air Act, or Clean Water Act, or the Endangered Species Act, because Congress wasn’t precise enough in the policy guidance it gave the agency.”
The Gundy case, which involves a dispute over the Sex Offender Registration and Notification Act, directly relates to criminal, not civil law — but legal observers warn that reviving non-delegation in any context could open the doors to hard right-wing judicial activism in much broader contexts.
“There are many on the right that want to upend nearly a century of law,” said Lisa Graves, co-director of the watchdog group Documented and a former Deputy Assistant Attorney General, warning that Kavanaugh’s appointment could kick off a move back towards the Lochner era.
Kochs and Kavanaugh: The Laissez-Faire Link
The Lochner era’s laissez-faire philosophy — a hands-off, “let it be” approach that promotes slashing corporate regulation in the name of limiting government power — is one that many Koch-affiliated organizations and right-wing think tanks share today.
Kavanaugh, a long-time Federalist Society member who briefly resigned at the start of his tenure with the G.W. Bush White House Counsel, has remained active at Federalist Society events, though in 2001 he sought to distance himself from the conservative legal group in the press.
“The Federal Society role here is extraordinary,” said Graves. Leonard Leo, who has served for years as the society’s executive vice president, took a leave to advise President Trump on judicial nominees. He helped craft the list used by the Trump administration to decide who to appoint to Supreme Court vacancies.
By speaking at and attending many of the Federalist Society events, Kavanaugh maintained a close connection to the group after he became a judge in D.C.’s U.S. Court of Appeals.
“Judges are like jewels in the crown of the Federalist Society,” Graves said. “In essence, his involvement lends the prestige of his office to that organization.”
When it comes to climate change, Kavanaugh can see that there is a problem. “The earth is warming. Humans are contributing,” he said in 2016. “There is a huge policy imperative. The pope’s involved.”
But in 2016 during oral arguments for a lawsuit against the Clean Power Plan, Kavanaugh’s reasoning against Obama’s signature climate change program took on a Lochner-esque tone as he argued that Congress hadn’t clearly delegated authority for Obama’s EPA to regulate carbon emissions under the Clean Air Act. “Global warming is not a blank check, either, for the President,” Kavanaugh said.
During hearings on his appointment to the D.C. Circuit, Kavanaugh called Lochner a “classic example of judges superimposing their personal views on the decision-making process in an improper manner.”
“Yet after ascending to the D.C. Circuit in 2006, Kavanaugh proceeded to follow the example of the Lochner justices,” Slate reported in July.
“Judge Kavanaugh isn’t anti-environmental, but he tends to be anti-agency,” Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, told Inside Climate News. “He’s often struck down regulation that he didn’t think Congress had authorized explicitly enough.”
Things Heat Up in Alaska and Maine
The two Republican Senators seen as most likely to shift course on Judge Kavanaugh’s appointment to the Supreme Court are Senators Susan Collins and Lisa Murkowski. They hail from two of America’s northern-most states. And those two northern states, Alaska and Maine, have already begun to feel the consequences of a changing climate.
In Alaska, the climate has been warming so fast, the Washington Post reported in January, that computers rejected data from Barrow, Alaska’s climate monitoring stations because the temperatures were so high that the algorithms assumed something had gone wrong with the monitors (it hadn’t.) Some parking lots and airport runways in the state are now equipped with cooling systems to keep the pavement from buckling as permafrost melts — a problem that’s putting building foundations at risk too.
Meanwhile Maine’s iconic lobsters are under threat not only from ocean acidification, but also from warming seas and invasive marine life. The state’s been experiencing a “marine heatwave” that’s raised ocean temperatures more than 10 degrees above normal levels.
Neither Collins nor Murkowski, who both have broken from party lines in the past, has a stellar track record on climate issues, but polls in their home states have shown strong public support for action.
The impacts of a Supreme Court appointment can be expected to long outlast the Trump administration’s time in office — potentially adding years or decades of delays if a later EPA seeks to take action on the climate.
To some degree, limits on government powers are right in line with a more moderate conservative view.
But the non-delegation doctrine is linked to some of the furthest excesses of unchecked capitalism, Supreme Court justices have pointed out. “Once we start down the road of saying Congress cannot tell even a private agency to go and make some standards, which we all know will be followed, once we start down that road there is no stopping place,” Justice Steven Breyer warned during oral arguments in 2014.
And that would serve the goals of some among the most extreme right-wing activists in the U.S. today. Trump’s former chief strategist Steve Bannon called for the “deconstruction of the administrative state,” the New York Times reported in February 2017.
A full revival of Lochner would go a long way towards achieving that goal — and the consequences for the climate could be dire.
