Republicans Have an Ambitious Agenda for the Supreme Court

Why the G.O.P. doesn’t need to try to pass mostly unpopular policies through the elected branches.

Not so long ago, Republicans had one of the most ambitious legislative agendas of any political party in modern American history.

Devised by the former House speaker, Paul Ryan, the so-called Ryan budget sought to reduce much of the nation’s social safety net to ashes. Congressional Republicans planned to slash Medicaid spending and food stamps. In the most aggressive version of Mr. Ryan’s proposal, Republicans would have replaced Medicare with “premium support” vouchers that could be used to buy private insurance, and then reduced the value of this subsidy every year — effectively eliminating traditional Medicare over time.

But all of that has changed. The Ryan budget is a relic. At their 2020 national convention, Republicans didn’t even bother to come up with a new platform.

Yet while the party appears to have no legislative agenda, it’s a mistake to conclude that it has no policy agenda. Because Republicans do: They have an extraordinarily ambitious agenda to roll back voting rights, to strip the government of much of its power to regulate, to give broad legal immunity to religious conservatives and to immunize many businesses from a wide range of laws.

It’s just that the Republican Party doesn’t plan to pass its agenda through either one of the elected branches. Its agenda lives in the judiciary — and especially in the Supreme Court.

From 2011, when Republicans gained control of the House of Representatives and denied President Barack Obama a governing majority, until the pandemic forced legislators’ hands in 2020, Congress enacted hardly any major legislation outside of the 2017 tax law.

In the same period, the Supreme Court

  • dismantled much of America’s campaign finance law;
  • severely weakened the Voting Rights Act;
  • permitted states to opt out of the Affordable Care Act’s Medicaid expansion;
  • expanded new “religious liberty” rights permitting some businesses that object to a law on religious grounds to diminish the rights of third parties; 
  • weakened laws shielding workers from sexual and racial harassment; 
  • expanded the right of employers to shunt workers with legal grievances into a privatized arbitration system;
  • undercut public sector unions’ ability to raise funds; and
  •  halted Mr. Obama’s Clean Power Plan.

Now, a 6-to-3 conservative-majority Supreme Court is likely to reshape the country in the coming decade, exempting favored groups from their legal obligations, stripping the Biden administration of much of its lawful authority, and even placing a thumb on the scales of democracy itself.

Many of these changes would build on decisions handed down long before President Donald Trump reshaped the Supreme Court. The court, for example, first allowed employers to force workers to sign away their right to sue the company — locking those workers into a private-arbitration system that favors corporate parties — in a 2001 case, Circuit City v. Adams. But the court’s current majority is likely to make it much harder for workers and consumers to overcome these tactics. In Epic Systems v. Lewis (2018), Justice Neil Gorsuch wrote the court’s majority opinion favoring an employer that forced its employees to give up their right to sue.

Similarly, in the 2014 case Burwell v. Hobby Lobby, the Supreme Court held that businesses seeking a religious exemption from a law may have it — holding, for the first time, that such exemptions may be allowed even when they diminish the rights of others. That case permitted employers with religious objections to birth control to deny contraceptive coverage to their employees, even though a federal regulation required employer-provided health plans to cover contraception.

Before Justice Amy Coney Barrett joined the Supreme Court, however, a majority of the justices were very reluctant to grant religious exemptions to state regulations seeking to limit the spread of Covid-19. Yet after she became a justice, the court’s new majority started granting such exemptions to churches that wanted to defy public health orders.

It’s plausible that the Republican Party did not campaign on its old legislative agenda in 2020 because it was busy rebranding itself. Under Mr. Trump, Republicans attracted more working-class voters, while Democrats made gains in relatively affluent suburbs. So Mr. Ryan’s plans to ransack programs like Medicaid aren’t likely to inspire the party’s emerging base.

And yet the court’s conservative majority is still pushing an agenda that benefits corporations and the wealthy at the expense of workers and consumers.

It’s easy to see why government-by-judiciary appeals to Republican politicians. There’s no constituency for forced arbitration outside of corporate boardrooms. But when the court hands down decisions like Circuit City or Epic Systems, those decisions often go unnoticed. Employers score a major policy victory over their workers, and voters don’t blame the Republican politicians who placed conservative justices on the court.

Judges can also hide many of their most consequential decisions behind legal language and doctrines. One of the most important legal developments in the last few years, for example, is that a majority of the court called for strict new limits on federal agencies’ power to regulate the workplace, shield consumers and protect the environment.

In Little Sisters v. Pennsylvania (2020), the court signaled that it’s likely to strike down the Department of Health and Human Services’s rules requiring insurers to cover many forms of medical care — including birth control, immunizations and preventive care for children. And in West Virginia v. E.P.A. (2016), the court shut down much of the E.P.A.’s efforts to fight climate change.

Yet to understand decisions like Little Sisters and West Virginia, a reader needs to master arcane concepts like the “nondelegation doctrine” or “Chevron deference” that baffle even many lawyers. The result is that the Republican Party’s traditional constituency — business conservatives — walk away with big wins, while voters have less access to health care and breathe dirtier air.

By legislating from the bench, Republicans dodge accountability for unpopular policies. Meanwhile, the real power is held by Republican judges who serve for life — and therefore do not need to worry about whether their decisions enjoy public support.

It’s a terrible recipe for democracy. Voters shouldn’t need to hire a lawyer to understand what their government is doing.

The Great Google Revolt

Some of its employees tried to stop their company from doing work they saw as unethical. It blew up in their faces.

JPMorgan Chase Seeks to Prohibit Card Customers From Suing

The change, which affects about 47 million accounts, including those for Chase’s popular Sapphire cards, reflects a broader effort by Wall Street firms to prevent customers and employees from engaging in class-action lawsuits that can result in large settlements and bad publicity. Unlike court cases, arbitration cases do not leave a trail of public documents and they cannot be brought by groups of aggrieved customers.

JPMorgan — the country’s largest bank — is far from alone in increasing the use of arbitration clauses. Seventy-two percent of banks used such clauses in 2016, up from 59 percent in 2013according to a report from the Pew Charitable Trusts.

The notifications said the arbitration agreement would apply not just to the customers’ current accounts but “all claims or disputes between you and us,” including “any prior account.”

The policy change turns back the clock in another way by bringing back the kind of arbitration clauses the bank and others agreed to temporarily drop in 2009 as part of a class-action lawsuit. The bank agreed to remove such provisions for three and a half years, starting in 2010, to settle a lawsuit that alleged large banks were working together to push customers into arbitration.

The Google Walkout Doesn’t Go Far Enough

The group and its supporters are advocating for five key changes. They want

  1. an end to forced arbitration in cases of harassment and discrimination;
  2. a commitment to end pay and opportunity inequity;
  3. a publicly disclosed sexual-harassment transparency report;
  4. a clear, uniform, and globally inclusive process for reporting sexual misconduct safely and anonymously; and
  5. promotion of the chief diversity officer to answer directly to the CEO and make recommendations directly to the board of directors, along with the appointment of an employee representative to the board.

.. The Google walkout, in particular, has done a great job of raising awareness of company wrongdoings, but at the end of the day, Google is a for-profit corporation. The way to negotiate with a for-profit corporation isn’t through symbolism, but by jeopardizing profits.

.. “If women and men and anyone who supports these efforts had an actual strike, then you’d see lasting change,” Prashar said. “They need to say we’re not going to work unless these things actually change.” He also doesn’t see lasting changes coming from Google itself, or any other for-profit tech company for that matter. “It would be brilliant for businesses to do this [protect workers from sexual harassment and punish abusers], but to create a countrywide change, it’s going to require state and federal government to come in and change the laws too.”

What #MeToo Has to Do With the Workplace Gender Gap

A new study from Lean In and McKinsey shows the pervasiveness of sexual harassment at the office and the persistence of inequality. That isn’t a coincidence.

What has been less apparent, though, is how harassment and the gender gap are inextricably linked. In fact, management experts and executives say, harassment can be a direct side effect of a workplace that slights women on everything from pay to promotions, especially when the perception is that men run the show and women can’t speak up.

Putting more women into executive ranks where they can have a greater collective voice goes hand-in-hand with making workplaces feel safer and more inclusive

.. “You can’t separate them,” she says. “When women see other women in a position of leadership, it reframes what they think is possible to them.”

.. Among women in technical roles, 45% reported experiencing harassment, while 55% of women in senior positions did.

“This is about power,” says Rachel Thomas, president of LeanIn.Org, the nonprofit founded by Facebook Inc.’s Sheryl Sandberg to support women in their career ambitions. “And there is still a dramatic power imbalance in the workplace.”

.. One in five women say they are often the only, or one of the only, women in the room or a meeting—and women commonly in those situations are at greater risk of harassment and more subtle forms of discrimination
.. “I joke that I chose a career where there’s no line for the bathroom,” says Kate Mitchell
.. “Decisions get made in the men’s room,” she says. “Do you follow them into the men’s room? Do you put your ear against the wall? Many times, it was easy to hear and so when they came out, I’d just start up the conversation” where they’d left off.
.. there are signs #MeToo is having an effect. Corporate hotlines have lit up since Hollywood mogul Harvey Weinstein became the first of dozens of powerful men to be toppled by harassment allegations last October.
.. Microsoft Corp. , Uber Technologies Inc. and Lyft Inc. have scrapped agreements that forced employees to resolve harassment claims in arbitration hearings rather than in open court.
.. cracked down on a frat-house work culture by banning alcohol in the office.
.. One thing managers spotted and changed was that there wasn’t always a woman on the job-interview team. That could both discourage female applicants and contribute to biased hiring decisions
.. To help get the conversation going, Ms. Steinberg told the group how, early in her career at another company, one of the most senior men cornered her in the copy room and groped her breast. Though she told her then-boss, they concluded the man held so much power that she would be better off not pressing the matter.
“I think back on it and still feel humiliated,” she says. At Zenefits, “we need to make sure employees know they have a voice.”
.. Another frequent question: whether hugging a colleague is still all right.
.. While nearly 60% of men say gender diversity is a high priority at their companies, only 44% of women do. Men are also more likely to worry the diversity focus will make their workplaces less of a meritocracy. In fact, one in seven say they worry that being a man will make it harder for them to advance.
.. That could include efforts as small as highlighting a point a woman made in a meeting if someone interrupts her, or, if a colleague repeats her idea without giving her credit, pointing out that she raised it first
.. create succession plans for their positions, and each has to include at least one woman and a person with a minority background. That motivates bosses to make sure those candidates get the experience and support they need to be viable potential successors
In the past, “everything we did was a program, this thing on diversity or this thing on unconscious-bias training,” Mr. Schlifske says. “I don’t think those are bad, but I just never saw those work if you didn’t add something in the workplace that was more day-to-day kind of stuff.”

Trump Campaign Files Complaint Saying Ex-Staffer Omarosa Manigault Newman Breached Secrecy Pact

Donald Trump’s presidential campaign filed a complaint against former White House official and campaign aide Omarosa Manigault Newman, alleging she violated a confidentiality agreement signed during his 2016 presidential bid.

A Trump campaign official said in a brief statement Tuesday that the claim was filed with the American Arbitration Association of New York City. The statement doesn’t specify how Ms. Manigault Newman might have violated the agreement.

.. . On Twitter on Tuesday, he called Ms. Manigault Newman a “dog” while denying her contention that he used a racial slur.

.. Ms. Manigault Newman has said during her book promotions that she has heard a recording of Mr. Trump using the N-word racial slur. On Monday night, the president wrote on Twitter that Mark Burnett, the television executive who created Mr. Trump’s “Apprentice” franchise, had told him no tapes exist from the production of the show in which he used “such a terrible and disgusting word as attributed by Wacky and Deranged Omarosa.”

“I don’t have that word in my vocabulary,” he wrote.

.. Mr. Kelly called Ms. Manigault Newman into the Situation Room last December and fired her, a meeting she recorded despite protocols barring staff from bringing electronic devices into the secure space in the White House basement.

Mr. Trump tweeted on Monday that Mr. Kelly had wanted to fire her immediately after becoming chief of staff last summer, but held off because the president believed she had said “only GREAT things about me.”

.. The last recording was aired Tuesday on CBS News. In it, Ms. Manigault Newman said, she and other campaign aides are heard discussing the possible existence of a tape in which Mr. Trump uses the N-word. One aide said she had talked to then-candidate Trump about the matter. The aide said she asked him, “Can you think of any time this might have happened, and he said, ‘No.’ ”

Ms. Manigault Newman is then heard saying, “Well, that’s not true.”

The first aide later said that Mr. Trump had told her, “Why don’t you just go ahead and put it to bed.”

For Wages, a Trump Slump

If the Trump economy were so wonderful, why would the speaker of the House feel the need to traffic in disingenuousness? Because the Trump economy isn’t actually so wonderful. For most Americans, it is downright mediocre, and it has deteriorated somewhat since President Trump took office, despite the healthy G.D.P. and unemployment statistics.

.. Let’s start with the good news. The unemployment rate keeps falling, and economic growth is solid. These headline numbers are the ones that Republicans emphasize

.. As a result of the growth, nominal wages — that is, the numbers people see in their paychecks, before taking inflation into account — are growing. You can see the pickup in the gentle upward slope of the chart’s solid gray line. Over the past year, the average hourly nominal wage has risen 2.7 percent.

.. Prices matter, too. When the prices of good and services are rising faster than nominal wages, people end up with less buying power. And that is exactly what’s happening now.

.. Events in the Middle East, Russia and Venezuela have reduced the supply of oil, even as a growing global economy is increasing demand. Trump has aggravated the situation by pulling out of the Iran nuclear deal, further raising oil prices.

.. My best guess is that real wages will do modestly better over the next year, barring another oil spike or an unexpected recession. But there is no reason to think that most Americans are on the cusp of truly healthy pay increases

.. They face too many obstacles:

Right now, Trump is presiding over precisely the wage growth that he deserves: zero.