Volume 29, Number 2

How Tyranny Undermines U.S. Courts
and Destroys Democracy

Fred Schepartz

As I am fond of stating, tyrants have a strong tendency to act like tyrants.

George W. Bush was not elected to the office of United States president. He was awarded the position by the U.S. Supreme Court.

By definition, Bush was a tyrant. Did he choose to rule wisely? Did he make an attempt to rule fairly and take into account the needs and desires of all Americans?

I think we all know the answer to that question. There’s much I could say about Bush’s tyrannical rule, but for my purpose here, I’ll just talk about the Supreme Court. Tyrant Bush was able to reshape what had been a liberal Supreme Court with the appointments of John Roberts and Samuel Alito.

Citizens United came about as a direct result of Bush’s tyranny. In what has to be considered one of the worst decisions ever made by the Supreme Court, we saw a decision that was the zenith of judicial activism, going above and beyond what was supposed to be the actual scope of the case.

Thus, as Mitt Romney so famously said, “Corporations are people, my friend.”

The result has been a disaster for democracy in the United States. Dark, uncontrolled money dominates elections on all levels. Candidates become innocent bystanders while PACs and Super PACs and “educational” 501(c)(3) non-profit corporations tell us who to vote for while not really telling us who to vote for.

Little surprise that in the first post-Citizens United election, dark money won the day for many a pro-business Republican, including Scott Walker in Wisconsin. And it should be noted that the Koch Brothers, who were on the far-right fringes decades ago, grew to be one of the most dominant political forces in America.

It should be noted that Citizens United did not create a climate of complete lawlessness. Donations to these shadowy non-profits may not be limited and need not be disclosed as long as said non-profit does not engage in explicit electioneering. However, Citizens United does not permit candidates to coordinate with a 501(c)(3) that campaigns on their behalf—as Scott Walker illegally did during the 2012 Wisconsin Recall Election.

Fast forward to 2016. Justice Antonin Scalia dies suddenly. As is his duty, President Barack Obama appointed Merrick Garland to succeed Scalia. Senate Majority Leader Mitch McConnell flat-out refused to consider anyone appointed by Obama. He claimed that because it was an election year the people should have a say in who would succeed Scalia on the court.

This bullshit rationale on the part of McConnell was nothing but a smokescreen masking a desire to hope for better luck after the election. There was no precedent backing McConnell’s claim.

Or in McConnell’s own words, “One of my proudest moments was when I told Obama, ‘you will not fill this Supreme Court vacancy.’”

Again, McConnell can claim whatever bullshit rationale he wants, but what he did was fundamentally anti-democratic. It was the act of a tyrant, as was the theater that ensued when Trump appointed Neil Gorsuch to the Supreme Court. Gorsuch was not destined to get the 60 votes needed to overcome a filibuster—wouldn’t it be nice to actually have some degree of consensus? Instead, Senate Republicans invoked the so-called nuclear option, which lowered the threshold of confirmation to a mere majority.

Fast forward to just last month. The Supreme Court announces a decision for the plaintiffs, written by Gorsuch, in the matter of Epic Systems Corp. v. Lewis, finding that arbitration agreements must be enforced as written.

This is a horrible decision with horrible implications for American workers. While it does not affect workers, who belong to labor unions, it has far reaching affects for the roughly 25 million workers who do not belong to labor unions and work under contracts that prohibit collective action.

If a worker signs an employment contract that requires mandatory arbitration to settle disputes with the employer, that worker has no choice but go through arbitration, regardless as to whether the process is actually fair. Arbitrators generally are selected by the employer.

If a worker signs an employment contract that prohibits collective action, that worker cannot enter into a class action lawsuit with other workers who have been wronged by that employer. The court even upheld the notion that an employment contract may prevent a worker from seeking relief within the judicial system.

Epic Systems Corp. v. Lewis involved wage and overtime cases but could also make it more difficult for workers to take action against sexual harassment, discrimination and any other employment issue. Even if the employment contract does not expressly prohibit judicial relief, it may be difficult for workers to find adequate representation because the award may be rather small, certainly much smaller than a class action suit, and thus attorneys might not want to represent a worker without the worker paying an expensive retainer.

With this terrible decision, the Supreme Court has declared open season against the American worker. As it is, workers often find themselves in a take-it-or-leave it situation with these arbitration clauses. Often, the worker may not even know they’ve signed such an agreement. It may be part of the fine print. It may be a clause at the end of the job application.

And it is worth noting that these arbitration agreements are part of the so-called Tort Reform Movement whose sole purpose is to make it easier for the rich and powerful to get away with whatever they want by making it more difficult for their victims to seek redress within the judicial system.

Gorsuch acted as the shill of the tyrants who gave him his position. His decision was a stunning example of constructionist block-headedness. He cited the Federal Arbitration Act despite the fact that New Deal labor laws, which were passed later, expressly gives workers the right to band together. Being ever literal-minded, Gorsuch seemed to believe that such labor laws apply only to labor unions and no other collective action.

Justice Ruth Bader Ginsburg wrote a stinging dissent where she clearly saw the real-world implications of this decision, where those who will be hurt the most are the ones with the least power. She called the decision “egregiously wrong.”

In less than 10 years, we have seen two horrible Supreme Court decisions, one of which has done tremendous damage to our electoral system. The other has clear potential to wreak havoc with worker rights.

Both of these decisions were the direct result of actions taken by tyrants that put people in places of great power within our judicial system. And again, tyrants will tend to act like tyrants.

Our judicial system should or certainly can do a great deal to allow us to reach our full democratic potential. Or it can do a great deal to injure our democracy.

We must not allow tyrants to define our judiciary because when they do that, they define and destroy our democracy.