The next president will likely make several appointments to the Supreme Court. This Court, deciding cases as if it were the Sheriff of Nottingham, is having a substantial impact on the economy. With the death of Justice Scalia, this clearly becomes a momentous time, whether or not President Obama is able to fill that seat on the Court.
The story of Robin Hood and the Sheriff of Nottingham comes down to us from a medieval fairy tale and numerous retellings in print and on film. Bruce Bueno de Mesquita and his colleagues have explained the role of Sheriff of Nottingham type figures in our contemporary world. The fewer the people with real power, the more the people who run the government have to focus on how to shovel favors to those folks. Given how wealthy they already are, they won’t appreciate any but very large rewards. But whatever government does for the people, the less there is for these powerful patrons. So the rulers become and employ modern day Sheriffs of Nottingham. It’s what Bueno de Mesquita’s group calls the dictator’s game: by starving the people, dictators have more to give powerful supporters – and the more powerful they are, the more they want to continue their support.
Kevin Phillips, among others, detailed the enormous benefits that corporations seek and that government directs toward corporations and their leaders. Lobbying and political spending are very lucrative, they drive the fruits of government toward the favored few. One of those fruits is the dismantling of government wherever business wants to operate in the dark.
That of course is bad enough. Many of us have been fighting a variety of special favors for corporations that exploit workers, the environment and the general public for decades. But the story gets worse. Just as the story of Robin Hood implies that a restive public will eventually throw off King John and the Sheriff of Nottingham, the holders of great wealth and power fear the people, fear that their ill-gotten gains will be shorn from them, and try to prevent it, block opponents from voting, undercount or minimize their votes by gerrymandering and similar measures, and pour large funds into preserving their power while starving the population of public services of all kinds.
The Supreme Court has been playing a part. In the face of the enormous gains by the wealthiest in America, and the flatlining and decline of the general public, this Court has consistently moved the benefits of economic activity from the general public to business, and from the victims to the predators. The Court reversed the meaning of a 1925 arbitration statute to derail a plethora of consumer protections that states had passed and used the statute to make it almost impossible to sue at all. Instead the corporate defendants get to choose the people who will decide the dispute, and threaten those who try to use even that process with large fees. The Court undercut both state and federal standards of liability for injury to consumers, securities fraud and the damages that are available to those plaintiffs who get to judgment. And the Court has been waging a battle to strip the unions of any power to protect workers.
At the same time, the Court has unleashed the full power of corporate treasuries on politics. Those corporate treasuries had been largely barred from politics since early in the twentieth century. And the Court has allowed states to make it harder to register to vote by making it much more expensive and much more time consuming – burdens that will prove onerous for working class, poor or physically challenged Americans from the polls. The Court by rejecting standards for districting, allows gerrymandering, not the popular vote, to reshape American politics. And in other ways the Court has supported efforts to entrench political incumbents. The Court topped all that by removing the requirement that covered states pre-clear voting changes, the one weapon of the Voting Rights Act that had worked.
Historians and political scientists tell us that pattern of enormous disparities leads to efforts to preserve and defend economic privilege. It is often the prelude to the breakdown of democracy, the loss of self-government. Sometimes it is the prelude to violence, variously described as Black Shirts, Brown Shirts, Death Squads, and the security services of people like Putin. In other cases the plutocrats simply invite a dictator to take control and leave it to the people to try to revolt. The basic point is that the disparities are dangerous. And the Court has been playing a role, not by moderating these outrages in the name of American tradition but by hyping them and making the problems worse, increasing the disparities and allowing them to take over American politics. This Court is a danger to American self-government.
And that’s where the senatorial and presidential candidates come in. Whatever policies they claim to support, their judicial picks will have a big impact on what really happens to ordinary Americans and the future of self-government in America.
Stephen E. Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Unfit for Democracy: The Roberts Court and the Breakdown of American Politics (NYU Press, 2016) and other books on the Supreme Court and American constitutional law. He has served on the Board of the New York Civil Liberties Union, the New York Advisory Committee to the U.S. Commission on Civil Rights, and in the US Peace Corps in Iran. His blog can be found at constitutionalismanddemocracy.wordpress.com/.