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Frighteningly, the most ardent and passionate supporters of Supreme Court appointee Brett Kavanaugh seem to know and care little about his judicial posture and the likely effect of his appointment to the Supreme Court. However, while Kavanaugh's opinions on social issues like contraceptive rights may be troubling, it's his slavish and shameless devotion to the ruling business class - and complete disregard for workers, consumers, and persons subject to harassment by the police - that is most horrifying.
The Supreme Court has been controlled by moderate conservatives for nearly all of American history, outside of the two decades following the Second World War, the replacement of moderate conservative Anthony Kennedy with far-right conservative Brett Kavanaugh will almost certainly have huge consequences on American judicial precedent.
Now it would be easy enough to dig up precedents from the last time the Court was this conservative - such as the ones that outlawed child labor laws and overtime pay laws, or that said that the government could arrest and imprison people for nonviolent political beliefs, or that permitted laws that banned women from owning property, or that said that Japanese internment was constitutional. And we could very well see such a return to Lochner Era jurisprudence. However, we don't need to conjure up the ghost of James McReynolds to speculate on just how quickly American law and policy could change - by looking at conservative opinions and dissents over the past three decades, as well as some of Kavanaugh's own dissents (highlighted in yellow).
So let's dig into a few areas:
Do you believe that corporations should be able to circumvent collective bargaining requirements by hiring undocumented workers? Kavanaugh does, as did the conservative Court in Hoffman Plastic Compounds, Inc. v. NLRB, which held that employers could get out of paying backpay to workers aggrieved by an unfair labor practice if those workers were undocumented.
Do you think that the government should be able to expand a warrantless search into one's pockets and inner clothing, even if a stop-and-frisk produced no evidence? Kavanaugh thinks so.
Do you think that consumers and employees injured by corporations should be forced into arbitration proceedings and prevented from litigating the case in court - even if the arbitration proceedings lack substantive due process? The conservative Court says yes.
Do you think that the government should be able to fire, demote, or otherwise silence government whistleblowers? The conservative Court says yes.
Do you think that the government should be able to conduct warrentless search and seizures of cell phone data? The conservative bench says yes.
Do you think that American corporations should be able to escape liability by outsourcing and committing misconduct overseas? Kavanaugh sure thinks so.
Do you think that the judiciary should be able to circumvent the legislature and approve large corporate mergers that violate antitrust laws? Kavanaugh would like to do that, law be damned.
Do you think that corporations, unions, and rich citizens should be able to spend limitless amounts of money toward political campaigns? The conservative Court says yes, and furthermore seems postured to further degrade disclosure requirements so that it's harder to see where political donations and expenditures come from.
Do you think that the federal government should be further restricted from passing environmental laws to address the issue of climate change? The conservative bench seems to favor a race to the bottom by states.
Should states be able to purge limitless voters from voting rolls on the basis of having not voted in recent elections? The conservative Court says yes.
Do you think that employers should be held liable for deaths of employees due to the employer's negligence in delegating an abnormally dangerous job duty? Kavanaugh says no
Do you think that citizens should be allowed by the Constitution to sue the government for violations of their Fourth Amendment rights? The conservative bench says they shouldn't.
Do you think the government should be able to carry out warrantless searches when arrestees are detained? The conservative bench says yes.
Do you believe that the government should be able to penalize non-violent speech given to political entities deemed without due process by the executive branch to be unsavory? The conservative Court says yes.
Do you believe that the Consumer Financial Protection Bureau should be thrown out as unconstitutional because it has a "termination for good cause" provision? Kavanaugh thinks so.
Do you think that the government should allow congressional redistricting that distorts democracy along the lines of race? The conservative bench says yes.
Do you think that flag burning should be a punishable criminal offense, unprotected by the First Amendment? The conservative bench says yes.
Do you think that net neutrality, which prevented corporations from discriminating against consumers with regard to content and access, should be outlawed as a violation of the First Amendment? Kavanaugh does.
Should the Court be able to disregard stare decisis and outlaw mandatory union dues and enable union free-riding? The conservative Court did just that.
Should the government be able to, without a warrant or due process, seize property it believes to be obscene or immoral? The conservative bench has said yes.
Do you think that the Supreme Court should serve as the de facto arm for one of the major political parties in political disputes? Kavanaugh seems to think that's good.
Do you think that employers should be able to discriminate against former union members and refuse to recognize their employees' union? Kavanaugh says "go ahead."
The Supreme Court has been controlled by moderate conservatives for nearly all of American history, outside of the two decades following the Second World War, the replacement of moderate conservative Anthony Kennedy with far-right conservative Brett Kavanaugh will almost certainly have huge consequences on American judicial precedent.
Now it would be easy enough to dig up precedents from the last time the Court was this conservative - such as the ones that outlawed child labor laws and overtime pay laws, or that said that the government could arrest and imprison people for nonviolent political beliefs, or that permitted laws that banned women from owning property, or that said that Japanese internment was constitutional. And we could very well see such a return to Lochner Era jurisprudence. However, we don't need to conjure up the ghost of James McReynolds to speculate on just how quickly American law and policy could change - by looking at conservative opinions and dissents over the past three decades, as well as some of Kavanaugh's own dissents (highlighted in yellow).
So let's dig into a few areas:
Do you believe that corporations should be able to circumvent collective bargaining requirements by hiring undocumented workers? Kavanaugh does, as did the conservative Court in Hoffman Plastic Compounds, Inc. v. NLRB, which held that employers could get out of paying backpay to workers aggrieved by an unfair labor practice if those workers were undocumented.
Do you think that the government should be able to expand a warrantless search into one's pockets and inner clothing, even if a stop-and-frisk produced no evidence? Kavanaugh thinks so.
Do you think that consumers and employees injured by corporations should be forced into arbitration proceedings and prevented from litigating the case in court - even if the arbitration proceedings lack substantive due process? The conservative Court says yes.
Do you think that the government should be able to fire, demote, or otherwise silence government whistleblowers? The conservative Court says yes.
Do you think that the government should be able to conduct warrentless search and seizures of cell phone data? The conservative bench says yes.
Do you think that American corporations should be able to escape liability by outsourcing and committing misconduct overseas? Kavanaugh sure thinks so.
Do you think that the judiciary should be able to circumvent the legislature and approve large corporate mergers that violate antitrust laws? Kavanaugh would like to do that, law be damned.
Do you think that corporations, unions, and rich citizens should be able to spend limitless amounts of money toward political campaigns? The conservative Court says yes, and furthermore seems postured to further degrade disclosure requirements so that it's harder to see where political donations and expenditures come from.
Do you think that the federal government should be further restricted from passing environmental laws to address the issue of climate change? The conservative bench seems to favor a race to the bottom by states.
Should states be able to purge limitless voters from voting rolls on the basis of having not voted in recent elections? The conservative Court says yes.
Do you think that employers should be held liable for deaths of employees due to the employer's negligence in delegating an abnormally dangerous job duty? Kavanaugh says no
Do you think that citizens should be allowed by the Constitution to sue the government for violations of their Fourth Amendment rights? The conservative bench says they shouldn't.
Do you think the government should be able to carry out warrantless searches when arrestees are detained? The conservative bench says yes.
Do you believe that the government should be able to penalize non-violent speech given to political entities deemed without due process by the executive branch to be unsavory? The conservative Court says yes.
Do you believe that the Consumer Financial Protection Bureau should be thrown out as unconstitutional because it has a "termination for good cause" provision? Kavanaugh thinks so.
Do you think that the government should allow congressional redistricting that distorts democracy along the lines of race? The conservative bench says yes.
Do you think that flag burning should be a punishable criminal offense, unprotected by the First Amendment? The conservative bench says yes.
Do you think that net neutrality, which prevented corporations from discriminating against consumers with regard to content and access, should be outlawed as a violation of the First Amendment? Kavanaugh does.
Should the Court be able to disregard stare decisis and outlaw mandatory union dues and enable union free-riding? The conservative Court did just that.
Should the government be able to, without a warrant or due process, seize property it believes to be obscene or immoral? The conservative bench has said yes.
Do you think that the Supreme Court should serve as the de facto arm for one of the major political parties in political disputes? Kavanaugh seems to think that's good.
Do you think that employers should be able to discriminate against former union members and refuse to recognize their employees' union? Kavanaugh says "go ahead."
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