Justice Scalia's Two-Front War

[Joanne98]

Despite lip service to "judicial restraint" Scalia has been waging a war against consumer product regulation as well as protections for workers, at both the state and federal level.

Simon Lazarus and Harper Jean Tobin | March 6, 2008 | web only



Modern American conservatives are widely perceived as reflexively pro-states' rights. But as long ago as 1982, movement icon Antonin Scalia, then a University of Chicago law professor, warned members of the fledgling Federalist Society to shed such myopic nostalgia. Conservatives' underlying goal, he said, is "market freedom." While that goal surely justifies opposition to federal economic intervention, he observed, it should also entail actively exploiting federal authority to stop objectionable meddling by state governments. He counseled conservatives to "fight a two-front war" against overzealous regulation at the state no less than the federal levels: "ith all these targets out there," he noted, there must be "at least a few targets to be shot at."

These past two weeks, Justice Scalia and his fellow conservatives on the Supreme Court could be seen merrily shooting at regulatory targets on both the federal and state "fronts." With respect to the latter, they were focused on a target prophetically singled out in his Federalist Society speech: state laws holding manufacturers liable for "design defects," which "subject interstate businesses to greatly increased damages." Scalia's 1982 agenda contemplated federal legislation to curb state regulatory excess, in keeping with the traditional conservative nostrum that major policy decisions should be made by the people's elected representatives, not unaccountable "activist" judges. But after a quarter century of service on the federal bench, "judicial restraint" has been dropped from Scalia's playbook. He and his allies appear on course to reverse generations of precedent and, with scant or no authorization from Congress, shut down all 50 states' tort law regimes insofar as they apply to medical devices, drugs, or other products regulated by the federal Food and Drug Administration.

Scalia scored his most direct bull's-eye on Wednesday, Feb. 20, when he wrote the Court's opinion in a case, Riegel v. Medtronic, which forecloses any legal remedies for individuals who are injured by defectively designed medical devices, if those devices received premarket approval from the FDA. The 1976 federal law that created the approval process expressly barred states from imposing "requirements" on medical device manufacturers "different from or in addition to" those prescribed by the FDA. The Court held that this preclusion of inconsistent state regulation -- what the Court calls "pre-emption" -- applied not only to state statutes and regulations -- which the 1976 Congress plainly intended to pre-empt -- but also to common-law tort suits against FDA-approved devices, about which the law was silent. In committee reports, hearings, and debate about the bill, its supporters had repeatedly made clear that Congress considered the new federal prescreening law a supplement to traditional state common-law remedies -- not a replacement.
http://www.prospect.org/cs/articles?article=justice_scalias_two_front_war

[Joanne98]

1. Repealing the 20th Century

While everyone focuses on its abortion decisions, the Roberts Court is merrily revoking a century of legislation protecting citizens, consumers, workers, and minorities against business.

Simon Lazarus | December 12, 2007



When most Americans think about the Supreme Court's effect on the life of their nation, they think about such cultural hot-buttons as abortion, or due process for terrorists, or free speech and pornography. They don't think about the Court's effect on the issues that most directly affect the majority of them on a daily basis -- health and retirement security, workplace fairness and equal opportunity, consumer protection and product safety.

Since these pocketbook matters do not roil culture-war sensitivities or raise constitutional questions, the press, public, and politicians pay little or no heed when they come before the Court. Nor, with few exceptions, do liberal advocacy groups -- even though landmark laws they fought to enact are at risk, and even though constituencies they purport to represent have much reason to care about how those laws will fare in the hands of the Roberts Court. Indeed, while right-wing groups still make political hay by railing at "liberal activist" judges, progressive groups often pay scant attention to the conservative-activist threat to judicially repeal the economic protections that Congress and state legislatures have enacted since the New Deal.

The current Supreme Court term, however, could yield some historic decisions that do just that. For the past two decades the Rehnquist Court narrowed the scope of economic-security safeguards, insulated federal and state officials from accountability for maladministration of those laws, and obstructed citizens' access to legislatively guaranteed benefits and protections. Earlier this year, in its notorious May 2007 Ledbetter v. Goodyear Tire & Rubber decision, a 5-4 majority on the Roberts Court gutted the 1964 Civil Rights Act guarantee of equal pay opportunity. Now, 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.

The weightiest such items on the Court's 2007–2008 agenda are two cases affecting legal guarantees of health and retirement security. These cases, one already docketed and one the subject of an as-yet unanswered petition for review, will test whether the Roberts Court will expand Rehnquist Court doctrines that have stripped workers and retirees of remedies for abuse by employers, health maintenance organizations (HMOs), and entities that administer their health and retirement plans. These doctrines have provoked outrage from legions of scholars and lower-court federal judges, who have complained that they mandate unjust decisions and grotesquely misconstrue the landmark federal Employee Retirement and Income Security Act of 1974 (ERISA). This is not an abstract or isolated problem; over 130 million Americans currently count on employer-sponsored plans for retirement and health-care protection.
http://www.prospect.org/cs/articles?article=repealing_the_20th_century

[AdHocSolver]

3. The right wing is turning this entire country into a feudal society of the Middle Ages.

The majority of the people are serfs tied to a particular fiefdom. Instead of a piece of land, modern serfs are enslaved to a corporation. The barons are corporate CEOs. Instead of barbarian invaders, the populace needs protection from the marauding medical industry, insurance companies, and banks.

Small businesses of today are like the itinerant peddlers who wandered from place to place trying to scratch out a living, and being at the mercy of everyone.

In the Middle Ages, we find a wealthy and powerful religious establishment which gets its support by instilling fear and hostility in a superstitious and credulous population.

There is corruption and fierce competition among the ruling elite, and the masses pay dearly in taxes and blood for the constant fighting. Medicine is practiced by sorcerers who rely heavily on leeches and poultices made of animal dung. The sick often do better when they don't have "medical" attention. Most of them can't afford it anyway.

As you can see, our ruling elites are striving mightily to bring back those glorious Middle Ages when their kind ruled with an iron grip, and the masses were clueless and helpless.

[roseBudd]

2. conservatives love social darwinism, scientific darwinism, not so much