> -----Original Message-----
> From: owner-lbo-talk at lists.panix.com
> [mailto:owner-lbo-talk at lists.panix.com]On Behalf Of Chuck0
>
>
> Yeah, right, this refrain has been used by liberal activists ever since
> I can remember. They use the threat of who could be appointed to the
> Supreme Court as an excuse to vote democratic.
> Well, the Clinton administration disproved that scare tactic. Look at
> the justices he appointed.
Yeah, look at them. Breyer and Ginsburg are hardly leftwingers, but in the 5-4 split votes, they have consistently fought Scalia, Thomas and Rehnquist. The march of the Supreme Court towards striking down large chunks of progressive legislation is on its way and those who pretend there is no difference between Scalia/Thomas/Rehnquist reactionary positions and Breyer/Ginsburg's positions are self-deluding. Breyer and Ginsburg are hardly Warren-Brennan Great Society activists but they are at least New Deal era legal folks who don't see the role of the courts as striking down democratically-approved economic and social legislation. Scalia-Thomas-Rehnquist are seeking to repeal New Deal era jurisprudence in favor of Court protections for property rights.
Two of the key Court decisions of this decade have been the "takings" cases, DOLAN v. CITY OF TIGARD (June 24, 1994), which struck down a local zoning ordinance, and EASTERN ENTERPRISES v. APFEL (June 25, 1998), which struck down legislation holding mining companies responsible for the health care costs of their dying ex-workers. Note that both were decided 5-4 with Ginsburg dissenting in both and Breyer dissenting on Eastern (Breyer was not on the court for Dolan).
Eastern is, I think, the most dangerous decision by the Supreme Court in years and if the Court adds a few more rightwingers will be the basis for striking down a range of national regulation. In that case, the Congress had held coal companies liable for the health care costs of former employees and the Supreme Court majority declared the law unconstitutional. Four Justices (O'Connor, Scalia, Thomas and Rehnquist) declared it unconstitutional under the Takings Clause, a radical application of that provision to a regulatory liability (as opposed to the physical property controls it had almost exclusively been applied to before this decision.) Kennedy supported the judgement on Due Process, not Takings Clause grounds.
O'Connor's majority decision declared that any legislation could be declared unconstitutional "if it imposes severe retroactive liability on a limited class of parties that could not have anticipated the liability, and if the extent of that liability is substantially disproportionate to the parties' experience." Thus any regulation can be struck down for "its interference with reasonable investment backed expectations."
If the plurality position on takings is extended, it could hold unconstitutional a wide range of regulatory rules, from Superfund responsibilities to toxic torts to almost any new regulation that frustrates "investment backed expectations."
Steven's dissent (which Ginsburg, Breyer and Souter endorsed) rejected such as standard as dangerous to democratic decision-making. Stevens refuses a general immunity for companies from retroactive liability and instead argues for a standard that "The law imposes upon Eastern the burden of showing that the statute, because of its retroactive effect, is fundamentally unfair or unjust." Stevens argued that "Eastern (the coal company), until 1987, continued to draw sizable profits from the coal industry though a wholly owned subsidiary. For these reasons, I believe that Congress did not act unreasonably or otherwise unjustly in imposing these health care costs upon Eastern."
Essentially, the majority position is that any new regulatory legislation could never apply liability retroactively. In its logical extension, the majority position would leave all past abuses of workers, the environment, and consumers that the law did not already protect against unregulated and with no possibility of liability assessed against the companies involved. Unlike the dissent which would disallow such liability only where it is "unfair or unjust", no retroactive liability would be allowed where it frustrated "investment backed expectations" of profit.
Maybe George W. will duplicate his Dad's mistake and appoint folks like Souter, but I would not bet on it, given the hanging judges he has packed onto the Texas courts. The rightwing legal community is mobilized to enshrine their new conservative majority and the consequences could restrict any progressive legislation for the next generation.
-- Nathan Newman