The Social Justice Criticism of Amy Coney Barrett Hides All of the Rest of What's Wrong with Her Nomination

Donald Trump's next gift to the nation, strong pro-corporate Supreme Court Justice nominee Amy Coney Barrett

by Thomas Neuburger

It's difficult not to be cynical about the Democratic Party these days. Their leaders talk like Donald Trump is the worst threat to America since Hitler, then grant his almost every wish — except the wish he floated recently about giving money to struggling Americans. That wish was withheld so he "wouldn't gain an electoral advantage" by giving money to some without also giving money to others on Nancy Pelosi's wish list — these people, for example — or so I hear.

But their lack of struggle against the nomination of Amy Coney Barrett is concerning. First they appeared to give up — "Faced with a moment with apocalyptic implications, leading Democrats fall somewhere on a spectrum that runs from oblivious to resigned. Cory Booker (D-N.J.) wants to appeal to the GOP’s 'sense of decency' and Maggie Hassan (D-N.H.) is complaining about procedural maneuvers that could delay the confirmation process," write David Segal and Zephyr Teachout in the NY Daily News.

Then, under pressure from progressives and others, they promised to "do something" — "Let me be clear," announced Chuck Schumer to his caucus, "if Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year" — but they still didn't specify what or when, unless Schumer's "next year" is a promise of surrender this year.

This lack of struggle against Barrett's nomination is a problem for many reasons. One is the effect she will have on the nation's social justice agenda, currently under heavy conservative attack. An Internet search turns up any number of links related to Barrett's likely views on abortion, gay rights, and the Court's recent attempts to craft a "religious freedom" exception to any of the country's laws. (I truly hope, if this exception becomes widely recognized, that progressives take full disruptive advantage of it.)

But as bad as her rulings on justice issues will likely be — and they are likely to be very bad — the most sweeping changes will be those directly affecting the economy and nation's hundreds of millions of working people, almost every single person in the country, in other words.

As a foretaste, consider this recent ruling authored by Barrett from the bench of the 7th U.S. District Court:

Amy Coney Barrett wrote the 7th Circuit opinion last month siding with Grubhub to say drivers cannot press for minimum wage and overtime pay as a class action, they must use arbitration agreements, a decision that limits gig workers across the country. https://t.co/WG5DOaQk9g

— Lee Fang (@lhfang) September 25, 2020

The case for dismissal turns on a technicality that could have been decided either way, and it's just the tip of the iceberg in Barrett's rulings. It's also a perfect example of what will soon come from John Roberts' newly reconstituted, very corporate-friendly Court majority. 

Roberts himself is the perfect "business friendly" justice for the Right to have installed on the bench. Barrett will be his perfect complement. A new report looked at Barrett's rulings and found that "Judge Amy Coney Barrett has faced at least fifty-five cases in which citizens took on corporate entities in front of her court and 76% of the time she sided with the corporations. She clearly sided with people in just 11 of these identified cases." (The report lists each case.)

A Common Dreams write-up of the report found these troubling examples:

• Barrett ruled in favor of a major pharma company over a woman who was forced to get a hysterectomy following a faulty IUD.
• Barrett voted against rehearing a case one judge said upheld the “Separate But Equal” doctrine on racial segregation.
• Barrett ruled that protections against age discrimination for employees do not also extend to job applicants.

Barrett will, in short, look for any reason, however razor-thin, to deny workers relief from the predations of corporate America. As David Sirota wrote recently in the Guardian:

Only a month before Barrett was nominated to the high court by Donald Trump, she delivered a ruling that could help corporations avoid paying overtime to gig workers. That ruling followed her other rulings limiting the enforcement of age-discrimination laws, restricting the government’s power to punish companies that mislead consumers and curtailing consumers’ rights against predatory debt collectors.

The UCLA law professor Adam Winkler said that if Barrett is confirmed, the consequences could reverberate for decades. “This would really push the court over the top ... You would have a very strong 6-3 conservative majority. And unlike previous times where conservatives had most of the seats on the court, none of the conservatives on [this] court really swing liberal on business or corporate power issues."

The nation was already near to breaking before the pandemic. Economic pain and its secondary effects — despair, addiction, suicide — haunt the mass of American workers and arguably led to the election of Donald Trump in 2016.

Now, in 2020, their backs and spirit will surely be broken through by the millions of lost jobs, most permanently, and the brave new post-Covid economy, an economy where Jeff Bezos can add $87 billion to his fortune and two-laptop professionals can work at home, while those who deliver food to them ... starve.

As Amy Coney Barrett's GrubHub ruling shows, her elevation to the bench will mean none of our working class "heroes" will get an ounce of economic relief if it has to come from the pocket of a billionaire.

The cries for social justice, important as they are, are drowning out the equally important cries for economic justice and relief. Is it "all hands on deck" time, Ms. Pelosi? Mr. Schumer? It soon will be for those to whom the Democratic Party is selling itself as salvation. I think if the Party wants to avoid growing a massive audience for the next Donald Trump — the better smarter one, a Trump who actually wants to rule, and can — they should heed those cries as well.

As Sirota says, if Democrats don't pursue a "this is a hill to die on" strategy (my phrase), "the court could become a corporate star chamber for the rest of our lives – which is exactly what business interests want."

I pity the fool (to coin a phrase) that has to live in the nation they will create.