News Journal: Will Supreme Court continue to favor corporations over customers and workers?

“To call it a joke is too kind.” That’s the blunt assessment of what has happened to the Senate’s Supreme Court confirmation process by Linda Greenhouse, who was for many years the New York Times courts correspondent. The kind of stonewalling now-Justice Neil Gorsuch did with the Judiciary Committee, she wrote in the Times last week, “was not consistent with historical practice and should not be viewed as a norm.” She is right. In my many years working in the Senate, most of them as an aide to Joe Biden and two of them as a senator, I was deeply involved in the confirmation hearings of 12 Supreme Court nominees. I saw the process deteriorate over time. The next Supreme Court justice should have an open mind like Kennedy’s Getting any kind of a handle on how a nominee is likely to position him or herself on the court has become far more difficult. I hope that will not be true when hearings on Brett Kavanaugh’s nomination are held. The media is focusing on inevitable questions about abortion and civil rights. These issues have rightly become central to confirmation hearings since Robert Bork’s in 1987. But I have also felt for some time that there has not been enough attention paid in the hearings to business issues facing the country. They were the focus of my questions when Justices Sotomayor and Kagan were confirmed. Corporations should care about more than shareholders I questioned Justice Sotomayor, who had been in private practice as a commercial litigator dealing with business issues, on her views on Congressional authority to regulate financial markets in light of the financial crisis. “I’m really glad you have this commercial experience,” I told her, “because I’m concerned about business cases. I think they’re really important. And I’m also concerned that the current Supreme Court too often seems to disregard settled law and congressional policy choices when it comes to business cases.” I questioned Justice Kagan on whether she believed the Court could ensure regular Americans have the same access and fairness before the justices as large corporation with plenty of money to spend. I also asked for her thoughts on “results-oriented judging,” and specifically the Citizens United case that had recently been handed down by the Court and gave corporations many of the same political free speech rights as citizens.

Since those two confirmations, the court has clearly become even more intent on protecting business interests. In the past few months, since Justice Neil Gorsuch joined the Supreme Court, the court has decided three significant cases by 5-4 votes that will give more power to employers over employees and customers.
The first was decided on May 21 when the court limited the ability of employees to band together to protect their rights. In her dissenting opinion, I think Justice Ginsburg got it right: “The court today holds enforceable these arm-twisted, take-it-or-leave-it contracts — including the provisions requiring employees to litigate wage and hours claims only one-by-one. Federal labor law does not countenance such isolation of employees.”
She went on to say that arbitrating each individual’s case alone would be much too expensive and “the risks of employer retaliation would likely dissuade most workers from seeking redress alone.”
Finally, she pointed out that only 2.1 percent of non-unionized companies imposed mandatory arbitration agreements on their employees in 1992, but now over half of them have such agreements.
A month later, on June 25, the court decided a case that will have a negative effect on the cost of most credit cards. It ruled in favor of American Express in a decision the National Retail Federation said, “will perpetuate a system that costs merchants and consumers billions of dollars a year…Today’s ruling is a blow to competition and transparency in the credit-card market…The American Express rules in question have amounted to a gag order on retailers’ ability to educate their customers on how high swipe fees drive up the price of merchandise.”
Finally, just two days later on June 27, the Court issued a decision that may well cripple unions. The case concerned public employee unions, but the principle could have a devastating impact on all unions.
The Court ruled that employees of a company represented by a union did not have to help defray the costs of collective bargaining efforts. That effectively means some union members can become free riders who end up receiving the benefits of any successful bargaining without paying for it.
An analysis by Frank Manzo, the policy director of the Illinois Economic Policy Institute, and Robert Bruno, a labor professor at the University of Illinois at Urbana-Champaign, found that this will result in a drop in the pay of government employees of 3.6 percent and public-school teachers of 5.4 percent and will reduce union membership by over 8 percent.
Shortly, the Senate Judiciary Committee will begin the confirmation process on Brett Kavanaugh to be on the Supreme Court for life. It is important that the Senators question his commitment to re-balancing the rights of customers and employees over the rights of corporations.

Ted Kaufman is a former U S Senator from Delaware