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OP-ED: The American election and the death of Justice Ginsburg

  • Published at 09:40 pm October 1st, 2020
US Supreme Court
A Supreme Court filled with conservatives could spell dark days ahead REUTERS

A look into what the US Supreme Court is now faced with in terms of voting rights, the environment, social media, and various economic challenges. This is the concluding part of a three-part series

This article continues on the issues before the Supreme Court. Part 2 covered the explosive social issues. Here we discuss economic issues, social media, environmental standards, and voting rights.

Economic issues  

The Supreme Court is regularly faced with complex cases on economic issues involving labour law, tax legislation, and the reach of the regulatory institutions. The great corporations of the United States all have important interests to protect.  

These corporations have two key objectives: To restrict competition without incurring any backlash, and to capture influence and control over the regulatory organization to prevent the issuance of rules and regulations that would be good for the people but reduce the profits of the corporations. One of the objectives of the wealthiest men in America is to ensure that the composition of the Supreme Court will assist them in achieving such an objective.  

One should not be naive. The business leaders in the United States talk constantly about free markets and competition but their actual objectives are to restrict competition in their own sectors, although they would like more competition among their suppliers. The importance of the court to this program has never been greater. The choice of justices for the court is a central battlefield for the evolution of capitalism.  

Unions and labour  

This area is always controversial and the court in recent years has been conservative and not supportive of union attempts to expand their ability to organize. Union membership in the private sector continues to be below 10%. Another conservative justice would set back the effort to increase the influence of labour unions, essential to rebalance the skewed income distribution. 

Trends in the United States have been to reduce union power and to make the employees more helpless than ever before the power of the company.

Regulation and the administrative state  

As technology has become more complex, all governments have built up organizations to formulate rules and regulations and then to enforce them. Corporations seek to minimize regulations and constraints on their behaviour and intensely dislike the administrative state and the regulatory authorities.  

In Bangladesh, there are many regulatory authorities that have some power over companies. The most powerful regulators are in the financial sector, including Bangladesh Bank and Bangladesh Securities and Exchange Commission. In the United States, there are many different kinds of market regulators in addition to the Federal Reserve and the SEC, over commodity and futures markets.  

Whenever there are large companies with complex technologies, there will be a regulator. Telecommunications is one example of a sector that has a very powerful regulatory organization both in Bangladesh and the United States. 

The conservatives in the United States are attempting to reduce the power of the regulators arguing the proposition that these individuals are not elected, and so their formation and promulgation of rules and regulations is illegal. The regulators have in effect usurped the role of the Congress.  

While a president can use the departments of the executive branch to change regulatory rules, the president has no such powers over the many independent organizations.  But the courts are a possible path to limiting the regulator’s power. 

Recently, the Supreme Court struck down a law that said the head of the Consumer Financial Protection Bureau could only be removed for cause, affirming that the head of the bureau could be removed by the president at will.  Fortunately, the Supreme Court rejected the effort to close the bureau down. 

This bureau is hated by the banks and other financial institutions, as it has been very effective in finding, closing down, and fining those who have tried to execute financial scams.  

Trump reduced their activities, bowing to the wishes of the big banks and financial institutions. This is a leading example of the conflict between the Democrats and the Republicans trying to use the court to get their way. This was a 5-4 judgment.  

Another conservative justice could well turn the court towards closing the bureau, allowing the financial organizations to exploit, lie, and cheat the consumer without fear.

Social media  

We can expect a rising tide of efforts to regulate social media or apply antitrust laws attempting to reduce their monopoly power. It is not clear who believes what about these organizations.  

Trump uses Twitter, but is providing false information. One critical question is: Should there be controls over the content? Does one have the right to put out false information? Or is one free to say anything, and the government has no right to regulate or limit the lying? Trump as president is the great liar, so he has made this an important issue.  

But there are many issues with social media involving content, taxes, and reduction of competition. Both the EU and the US will be struggling with these issues over the next decade, and the position of the US Supreme Court will be critical. The court’s views of freedom of speech and application of anti-trust law will be of great importance.

Environmental issues

Another big issue that will occupy the court and American corporations is climate change. The climate change denial cannot last unless the court supports the deniers. The fossil fuel companies continue to take the position that the belief in man-made climate change is a scientific error.  

Trump, of course, supports the fossil fuel companies, and takes pride in trying to increase the use of fossil fuels. The outlook for humanity is bleak. Conflicts over environmentally driven legislation will end up at the court.  We should hope for a court with a variety of views. 

There are many other environmental issues, and generally the conservatives have been poor stewards of the environment. The Supreme Court may well be drawn more and more into these matters, and a conservative court will do little to protect the environment or deal with global warming.

Voting rights

The Republican Party is engaged in a major drive to deny the vote to minorities. They need the support of the court to accomplish this, and generally they have received it. This past year, the court said that supervision by the Federal Government of the voting rules of southern states that systematically worked in the past to deny the vote to black people could end.  

These statutes, the court argued, had learned to not engage in the voter suppression. On the contrary, once the supervision rule was lifted, all sorts of dirty tricks emerged.  Do you think the justices of the Supreme Court are stupid, or racist? It is certainly one or the other.        

Consequences for the Supreme Court

With the appointment of another conservative justice to the Supreme Court, we are likely to find the court supports voter right suppression, acts against protecting the environment, including most of all global warming, limits the application of anti-trust law supporting big corporations, works to weaken unions and protection for workers, and finally, reduces regulatory protection from the abuses of the large corporations.    

The Democrats will not accept this, and will probably pack the court with several additional justices to ensure that their programs are not blocked by the court. 

Unless this is done, the United States cannot survive the selfish behaviour of American corporations and the mind-set of a group of judges who have swallowed the propaganda of these corporations.

Forrest Cookson is an economist who has served as the first president of AmCham and has been a consultant for the Bangladesh Bureau of Statistics.

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