Friday, June 24, 2011

Right Wing Judges Have Their Uses

I've generally taken a dim view of the conservative majority of the US Supreme Court, especially since their partisan 2000 ruling against Al Gore that stopped the Florida vote recount and made GWB President.  There's been the (so far unrealized) fear that they'd overturn Roe v. Wade to give abortion foes an upper hand. In January 2010 they aided special interests and electoral corruption by removing restrictions on corporations from spending freely on supporting or opposing candidates.  Going forward when it ultimately comes to them they may undo the 2010 health care reforms by (among other things) striking down the vital mandate for everyone to get insurance coverage.

But this same conservative wing also plays a key role in curbing class action lawsuits, expanding interpretation of anti-discrimination laws, and left wing activism that unfairly burdens our businesses and the economy.

On June 20 the Supreme Court threw out the largest class action sex discrimination lawsuit against Wal-Mart with the conservative wing also making it difficult to file such class actions in the future.  This is welcome as such cases are generally a boon for trial lawyers while imposing huge costs on businesses that are hard put to defend against a wide variety of claims, many of them frivolous.  Businesses pass on such costs to Americans in the form of higher prices, and this also makes the US a less desirable place to hire workers or operate in.  So in this way the conservative judges have helped not just businesses but also the economy and American consumers by reducing unnecessary litigation. 

In this same case the conservative majority did businesses another favor by indirectly rejecting "proof by quota" as I call it.  This is an argument by trial lawyers and bodies like the EEOC that the simple fact of lower average pay or under-representation of ethnic groups or gender is proof of discrimination.  For example, if women in Wal-Mart on average earn less than men, or their proportion in management positions is much below 50% then this alone proves Wal-Mart's discriminatory conduct.  It ignores (or shifts the burden to defendants to prove) other possible reasons like women working less hard or for fewer hours due to their family commitments, or interrupting careers to raise children.  Or having fewer applicants with the required skills or willingness to work long, non-standard hours.  The conservative judges required proof of some employer conduct or instructions that's common to all discrimination claims to allow them to be clubbed and litigated.

The Supreme Court can restrict "proof by quota" even more explicitly, particularly by public agencies like the EEOC whose actions can hobble businesses even if their orders are eventually overturned on appeal.  I like the role of our right leaning judges in at least three other areas:
  • Curbing pro-union partisanship and bias.  On April 22 I've talked of excesses by unions and the undesirable NLRB steps to try forcing Boeing to shift its 787 plane assembly from South Carolina to expensive, heavily unionized Washington.  Employers should be free to factor in labor relations and costs as well as labor disruptions to assess profits and viability, without the NLRB calling their resultant plant location an anti-union retaliation.  Even if it ultimately loses in a conservative Supreme Court (assuming the case goes that far) the NLRB's litigation is creating enough headaches for Boeing in the intervening period.  It would be a lot worse if a liberal Supreme Court actually sided with the NLRB.
  • Countering the excesses of anti-discrimination laws.  As mentioned above, affirmative action can easily slip into quota based appointments and promotions that undermine a meritocracy and cause reverse discrimination.  Back on April 8, 2009 I mentioned the offshoot of anti-age discrimination leading to barring employers (with a few exceptions) from having a mandatory retirement age, no matter how high.  I've already talked about why I consider these developments unfortunate from an economic and jobs viewpoint, and would like to see conservative judges bring the balance back even if our politicians won't.  Liberal judges through their judicial activism on the other hand may perpetuate or even extend such misplaced anti-discrimination measures. 
  • Being tough on crime.  Crime shouldn't pay, and "justice" should imply proportional consequences for major offenders.  On Sep. 3, 2009 I had espoused justice for violent and serious criminals to be weighted more towards deterrence, restitution and even retribution, instead of rehabilitation and reform.  When public resources are severely strained we see some courts forcing authorities to ease overcrowding, provide proper health care, spend more on inmates, or else to release them.  Conditions within prisons seem to be better than those for many outside of it.  Conservative judges are more in tune with the majority of Americans who prefer "true" justice to a coddling of criminals.
So there's at least a silver lining to these "right-minded" gentlemen of the court.

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