Si Lazarus: Is the Court "Repealing the 20th Century"?
Si Lazarus' latest article, published in The American Prospect last week, analyzes whether the Supreme Court is "Repealing the 20th Century" through its jurisprudence relating to "pocketbook matters" such as "health and retirement security, workplace fairness and equal opportunity, consumer protection and product safety."
Lazarus writes that:
over the past two decades the Rehnquist Court narrowed the scope of economic-security safeguards…obstructed citizens' access to legislatively guaranteed benefits and protections….cases to be decided during the Court's new term will provide clues as to whether the Roberts Court intends to launch an even more aggressive campaign to dismantle 20th-century progressive reforms and abort similar 21st-century initiatives.
After discussing two particular cases implicating ERISA, Lazarus quotes:
Edward Becker, the late 3rd Circuit U.S. Court of Appeals chief judge (and a Reagan appointee), [who wrote that] the Court's decisions have converted ERISA "into a shield that insulates HMOs from liability for even the most egregious acts of dereliction committed against plan beneficiaries, a state of affairs directly contrary to the intent of Congress." The impact of this distortion of ERISA's remedial scheme is not limited to particular individual victims. The Court-contrived immunity from liability is so robust that it drives the industry to incorporate systematic stonewalling of claims into its business model.
Lazarus also draws an analogy between the Roberts Court and the jurisprudence of the Lochner era, while noting a change in the doctrine through which Justices have restricted progressive economic reforms.
The new breed of conservative judicial activists has not sought expressly to exhume Lochner. For the most part -- at least so far -- they have discreetly avoided repeating the in-your-face strategy of invoking the Bill of Rights to strike down individuals' statutory economic protections. Instead, they have sought to throw sand in the gears of the regulatory state by proliferating obstructionist rules purporting to promote sound judicial procedure and the separation of powers. A perfect example is the Court's conversion of ERISA into a worthless font of rights without remedies. Another is this spring's Ledbetter ruling, which effectively if obliquely overturned the equal protections of the Civil Rights Act by barring discrimination victims from court unless they sue within 120 days of their employer's original discriminatory act -- despite the fact that, in real workplaces, evidence of such offenses rarely surfaces for years.
After identifying several cases of particular interest included in the Court's current Term, Lazarus argues that
it would be unrealistic to expect self-discipline from the Court -- at least until and unless Congress demands it. By limiting congressional authority and subverting major federal statutes, the Court has long been picking a fight with Congress. Up to this point, Congress has for the most part turned the other cheek -- or failed to notice altogether.To be sure, there have been some stirrings on Capitol Hill. During the Roberts confirmation hearings, members of both political parties -- in particular, Sens. Arlen Specter, Patrick Leahy, and Charles Schumer -- attacked the Court's federalism rulings as usurpations of congressional authority. But, other than a tough-talking July 2007 speech by Schumer to the American Constitution Society, there has been little follow-up to these protests against conservative judicial activism.
. . . .
This paradigm -- of an aggressive Court well to the right of Congress, most state governments, and a majority of the national electorate, but unchecked because of chronic Capitol Hill gridlock -- could become a basic structural feature of the early 21st-century political environment.
Lazarus concludes with a recommendation for progressives:
Liberals…have not trained a political spotlight on those judicial issues that matter to most Americans in the course of their daily lives -- a mistake, like the Court's mutilation of ERISA, that "screams out" for correction.