One of the most frustrating things about discussions of the US judicial system is that they always seem to be about abortion. This is, of course, an incredibly important issue. But the courts oversee so much more than that one aspect of life in the United States. The intense feelings involved in that one issue serve to conceal the true significance of Trump’s judges.
Trump loves to trumpet his success in selecting Judges, but what’s often ignored is the way that the judges he is picking will constrain not just his agenda, but everybody else’s as well. For decades to come. In today’s video, we attempt to demystify the issue a bit, and delve in to one of the most successful lobbying groups of the 21st century, the Federalist Society.
Video Transcript after the jump…
Hey there. Donald Trump’s most important accomplishment is probably his appointment of conservative judges. The judiciary is enormously powerful in the US system, where it often seems like judges spend as much time making laws as they do interpreting them. The 158 judges Trump has appointed are how his Christian followers justify their support for a man without values or compassion.
Sure, he may have spent memorial day weekend baselessly accusing a former Republican congressman of murder, but with all these conservative judges, the pro-life people tell themselves something will finally be done to block abortion.
Well, today I have some disturbing news for the pro-life crowd. These judges are going to end up being much more pro-tech company than pro-life.
Don’t get me wrong. These judges will chip away at abortion rights on the margins, which is a very bad thing. Women in the poorer red states are already having their rights to their bodies restricted through administrative bullshit, and Trump’s judges will make sure that chipping away continues. But I think the danger to Roe v. Wade, the landmark 1973 case that guaranteed a woman’s right to choose, is overstated. The conservative supreme court justices who are supposed to overturn Roe are politicians. And politicians don’t want to put their power in jeopardy. Allowing States to ban abortion is the kind of thing that ignites serious mass movements, and could get the set up of the Supreme Court changed. Nothing in the constitution guarantees that the Supreme Court has 9 judges. It’s only the weight of tradition that keeps things this way. Overturning Roe v. Wade would probably mean the end of the Supreme Court as we know it, and I don’t see justices like Roberts and Kavanaugh being willing to give up that kind of lifetime power for a brief victory for pro-life values.
Plus, abortion has been the keystone of GOP electoral strategy for decades. Struggling against abortion has given Republicans a range of voters who don’t have a lot of other reasons to vote for the pro-business party of the rich. Actually winning the fight against Abortion would be disastrous for the Republican party.
And there are so many more lucrative things for all these judges to do. The list Trump is working from was put together by the Federalist Society, one of the country’s most powerful legal organizations. In March the New York Times reported that 43 of the 51 judges appointed at the appellate level are affiliated with the Federalist Society. Kavanaugh and Gorsuch, Trump’s two supreme court picks, definitely are as well.
The federalist society is relatively new, founded in the 1980s with money from right wing plutocrats like John Olin, Richard Mellon Scaife and the Koch Brothers. But it’s been extraordinarily successful, not just at getting conservative judges appointed, but in changing the law of the United States to be more pro-business.
Every law school has a chapter, and law students know that if they are even a little bit right wing, the Federalist society’s conferences and networks are a ticket to well paying jobs and a prestigious career. This power is dedicated first and foremost to protecting the big businesses that fund the society, and removing any restrictions upon them. The Federalist Society’s members have probably been the most effective foot soldiers of the Reagan Revolution.
The biggest beneficiaries of this freewheeling legal environment have been the tech companies. The big five are in the process of swallowing the rest of the US economy. The big five now account for a full 25% of the value of the s&p 500, and the market cap of these five companies is higher than the value of the entire London stock exchange.
This is an impressive success story, but it’s also a troubling concentration of power, the likes of which the United States has not seen since the gilded age over 100 years ago. The response in the 1890s was to build up a body of law called anti trust in the United States. Everybody else calls it competition law, which is a little more self-explanatory.
Throughout the 20th century the federal government would step in to break up companies that gained too much power over the market, from Rockefeller’s standard oil to AT&T. Ironically, the big 5 tech companies probably owe their independent existence to antitrust proceedings that took place against IBM in the 1970s and Microsoft in the 1990s. Those two cases didn’t break up the companies, but they did get the companies in question to change their behavior.
After two decades without much oversight, forces across the country are beginning to wonder if it’s time to start talking about competition law again. It would be complicated, requiring new doctrines and new ideas about how to regulate things on the internet, but politicians on the left and right are building the energy to do it.
Donald Trump will retweet any conspiracy theory about technology companies. Democratic candidate for President Elizabeth Warren had a plan to break up big tech. Senator Josh Hawley, one of the many supposed saviors of the Republican party, loves to attack big tech for censorship and picking on the little guy. Amazon was so worried about all this that they opened up a second headquarters in Washington,DC, something I predicted as soon as they announced their HQ2 contest by the way. The conventional wisdom now expects serious movement on competition law as soon as we have a president who is capable of organized thought, regardless of party.
The conventional wisdom is wrong. Trump’s judges ensure that we won’t see serious movement on antitrust for decades. The Federalist Society claims not to take positions on things, but here is a clip I found with literally 15 minutes of googling.
“They all face substantial competition, in one respect or another. For instance, Amazon, which sells goods has 4% of the retail sales market. That is far from a monopoly. That is a highly competitive firm in a highly competitive industry. Google, say, has a very, very high percentage of the search business, or traffic if you will, but of course their real market is for selling advertising, and in that market they are far from a monopoly.”
You can find a link to the whole clip in the description below. There’s a large genre of outrage on Twitter over the amount of money supposedly liberal tech companies give to the Republican party. It’s not hard to explain that giving. Trump and his enablers claim his judges are there to fight against Abortion. The truth is that they are really there to keep big tech and other businesses safe from any new regulation. And that’s what Trump’s judges will do. For decades. No matter what the next Congress and President want.