Outliers and Justice

Unless you have been unconscious in the last 12 months, you know that there is a massive wave of dissatisfaction with incumbent power structures. GOP frontrunner Donald Trump, never having held any elective office, is challenging a moribund, gridlocked federal government with some pretty strong elements within his constituency – primarily among those with the least education according to pollsters – that would like to see him literally lead with an iron hand. They would like to see him take the presidency, step over congressional and judicial roadblocks – ignoring contrary rulings and mandates – and “make America great again,” letting our enemies know we have the military might to have our way. Down with a government that caters to special elites. Down with the establishment. Down with Washington.

Outlier Bernie Sanders is mounting a similar anti-establishment attack from the left, challenging the economic elites and those elements of government that have tilted the playing field heavily in their favor. He see a government that tolerates out-and-out criminal activity from Wall Street as millions of Americans lost their homes and came back to second rate jobs with long hours and low pay. Down with an unregulated Wall Street. Down with a government that caters to special elites. Down with the establishment. Down with Washington.

This is the growing populism that is redefining American politics. I can’t think of anyone who can say that our government is doing remotely a good job, but never before in this nation have such a small number of people been calling the shots at the top. And clearly, those power elites represent the richest 5% of our country. First the presidency is facing this challenge, and we’ve already seen the nascent anti-Washington sentiments building in local and congressional elections, year after year.

But there is one branch of government that has a lag time, a group that represents past years and long-past appointment… appointments by that self-same incumbency, often from a bygone era. The Supreme Court of the United States of America. Judges appointed decades ago in a different time are often making rulings that are more reflective of when they first stepped onto the bench – most were not exactly spring chickens when they got the job – that reflective of the here and now.

“The Supreme Court vacancy created by the death of Justice Antonin Scalia highlights a growing rift between the country and the nation’s highest court on questions of economic power and support for big business… And that gap, legal experts say, is unlikely to be significantly narrowed by the kind of justice President Obama — or the next president, Democrat or Republican — is expected to nominate.

“Americans have grown substantially more populist in their outlook over the last 15 years, according to some measures of public opinion, like whether they are satisfied with ‘the size and influence of major corporations,’ and whether the government should ‘redistribute wealth by heavy taxes on the rich.’ Indeed, if the presidential primaries are any indication, there is perhaps no more potent force in American politics today than economic populism.

“At the same time, some argue that the Supreme Court under Chief Justice John G. Roberts Jr. [pictured above] has become perhaps the most business-friendly court in recent history. A 2013 study by Lee Epstein of Washington University in St. Louis, William M. Landes of the University of Chicago Law School and Judge Richard A. Posner of the federal appeals court in Chicago ranked justices according to their rulings in cases involving business. The findings, which Ms. Epstein and Mr. Landes updated through the 2014-15 term for this article, show that six of the 10 most business-friendly justices since 1946 sat on the Supreme Court at the time of Justice Scalia’s death.

“President Obama has given little indication that he is likely to reverse this trend. Both of his previous nominees, Sonia Sotomayor and Elena Kagan, have been relative moderates on matters involving business, despite some progressive opinions in specific cases… ‘They are not Hugo Black or William Douglas or Earl Warren,’ said Arthur R. Miller of the New York University School of Law, who has written about the court’s friendliness toward business, referring to three prominent liberal justices.

“A variety of factors can help explain the demise of economic populism on the Supreme Court, where it once had a solid constituency. In recent decades, business interests, led by the U.S. Chamber of Commerce, have played a much more active role in the confirmation battles over Supreme Court justices.

“There is also the increasing partisanship of the United States Senate, which can prompt a Democratic president to select more moderate nominees in the hope of winning Republican votes… Most important, however, may be a broad pro-business consensus within the upper ranks of the legal profession, one that has been more than two generations in the making.” Noam Scheiber writing for the New York Times, March 11^th.

To history buffs, those who see immutable patterns repeating themselves through the ages, none of this is good news… if you care about little things like the United States or Western Civilization. We are actually watching the same kinds of events that have fostered such anger and polarization so as to bring down nations and civilizations for as long as history has been recorded. If we care about America, we need to take out these unfair advantages, level the playing field to where it used to be and create a land of opportunity – not opportunists – once again. What we are seeing in this new populism are the seeds of revolution… and if we do not apply a weed killer soon…

I’m Peter Dekom, and if those on the top of the economic pile are happy with the “big tilt” in that playing field, they should know that in a land of 300 million guns, they may well be the first to go when the anger really brims over.