by Seth Michaels, May 7, 2008

Yesterday, Sen. John McCain gave a speech about his vision for the U.S. Supreme Court and the kind of nominees he’d choose if elected.

McCain said that when it comes to looking for a Supreme Court justice, extremist conservatives John Roberts and Samuel Alito meet his standards “in every way” and “would serve as the model” for his nominees if he were elected president.

When you look at the record, though, Roberts and Alito have failed to look out for the rights of workers. Check out some of the cases where Roberts and Alito have provided decisive votes:

• Alito was the author of the May 2007 opinion that ruled against Lilly Ledbetter’s right to challenge the pay discrimination she faced on the job. Roberts joined that opinion, which fundamentally changed the way workers could fight discrimination at work.
• Last June, Roberts and Alito voted to strike down policies in Seattle and Louisville, Ky., that reduce racial segregation in schools. Roberts’ opinion, joined by Alito, would outlaw virtually any effort to promote educational diversity and inclusion in schools.
• Also in June 2007, Roberts and Alito joined a decision that prevented more than 1 million home care workers from getting a minimum wage or overtime pay.
• In January 2008, the Supreme Court, led by Roberts, refused to hear a case against Enron, which would have held executives accountable for defrauding their employees and investors.
• And just last month, Roberts and Alito joined in a decision to uphold a restrictive voter ID law that could, in essence, take the right to vote away from thousands of elderly, disabled, young, working-class and minority voters.

The AFL-CIO opposed Alito’s nomination to the Supreme Court and declared that Roberts’ record was “troubling” and demanded strict scrutiny, based on their history of anti-worker decisions on the lower court and concerns about their commitment to equal rights. Their record as justices on the nation’s highest court comes as no surprise—and McCain has promised to appoint judges just like them.

McCain was a strong supporter of Roberts and Alito when they were nominated in 2005, and he’s continued to vote for the Bush administration’s anti-worker judges, like 5th U.S. Circuit Court of Appeals nominee Leslie Southwick. (In the 1980s, McCain was a fan of radical reactionary nominee Robert Bork.) The next president, in addition to possibly naming Supreme Court justices, also likely would appoint dozens of nominees to other federal courts, and it’s worth examining McCain’s record on this crucial presidential power.

A recent article by legal scholar Jeffrey Rosen in The New York Times Magazine reveals how special interests have worked hard to get pro-corporate judges on the federal courts. The nominations of Roberts and Alito were major achievements for the Chamber of Commerce and other lobbying groups looking to stack the courts.

…the transformation of the court was no accident. It represents the culmination of a carefully planned, behind-the-scenes campaign over several decades to change not only the courts but also the country’s political culture.

Roberts, as chief justice, has presided over a major shift in the court away from workers’ interests, and Alito has been a crucial vote in this shift. Lobbying and pressure by corporate interests have paid off in decisions like the Lilly Ledbetter pay discrimination case. (It’s telling that one of the special interest lawyers Rosen mentions is Theodore Olson, a former Bush administration official. Olson sits on McCain’s judicial advisory committee.)

Though the current Supreme Court has a well-earned reputation for divisiveness, it has been surprisingly united in cases affecting business interests. Of the 30 business cases last term, 22 were decided unanimously, or with only one or two dissenting votes.

…ever since John Roberts was appointed chief justice in 2005, the court has seemed only more receptive to business concerns. Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years. While the Rehnquist Court heard less than one antitrust decision a year, on average, between 1988 and 2003, the Roberts Court has heard seven in its first two terms—and all of them were decided in favor of the corporate defendants.

Rosen’s article suggests that McCain is unlikely to shift this dynamic—and now McCain has confirmed that when he’s picking judges, he would look to the anti-worker Roberts and Alito as his model.

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