Part two of this two-part series looks at ‘Randian approaches to law and justice’ by the United States Supreme Court, including when it comes to voting rights and environmental protection laws and policies.
OPINION | The views expressed in this article are those of the author.
Part Two: Contemporary Erosion of “The Public Good”
Looking at the current workings of the U.S. Supreme Court, we can see remarkable support for pro-business laws and fierce opposition to laws protecting workers’ rights, including rights of association and the creation of unions. Some have described the current Court as the most pro-business court since the 1920s, when laissez faire economics were in their heyday.
During his term, President Donald Trump appointed two justices to the Supreme Court, the result of a questionably unfair process. This means six of the nine justices are hard right in their political orientation. Of these six, five are likely to approach justice in the same way as two senior associate justices on the Court: Clarence Thomas (age 74) and Samuel Alito (age 72).
Justice Thomas has spoken openly of his admiration for Ayn Rand’s work. While Alito has not spoken of literary influences on his judicial philosophy, he clearly shares many of Thomas’ views on key issues that have come before the Court. The two justices might be likened to Midas Mulligan – the resolute pro-business, anti-government regulation banker and belligerent right-winger in Rand’s novel Atlas Shrugged.
In part one of this series, I set the stage by looking at the main characters of two of Rand’s most famous novels – The Fountainhead and Atlas Shrugged. In this second part, I will look at what I call ‘Randian approaches to law and justice’ in today’s legal landscape. I will examine two key issues before the Court this year or next and offer commentary on what a Randian approach might look like. The two issues that illustrate the elitist views of Rand in their purest form are voting rights and environmental protection laws and policies.
Tilting the electoral process further towards the wealthy
In Atlas Shrugged, the narrator ridicules a passenger on a train hurtling toward a major crash by pouring cold water on the notion that a right to vote is vital. The narrator displays an icy contempt for ordinary folk who lack the creative spark of the tycoons and makes it clear that the deceased in the fiery crash have serious defects in their character. In the Randian worldview, these passengers are representative of a Nietzschean slave class and are less-than-human. The narrator scoffs at the notion that we should legally or morally endorse the vote of the poor housewife who has the audacity to believe she is capable of choosing wisely in the voting booth.
In modified form, the Court has essentially applied Rand’s philosophy of great business men (and the occasional business woman) being the engineers of growth. They are so much more important than ordinary citizens, who become moochers and leeches if they support policies that regulate and tax the rich. The Court has already done much to remove the right to vote of ordinary citizens in a wide variety of ways. However, it has the capacity in upcoming cases to go even further.
In a 2022 interview in The New Yorker about the lurch to the right and elitist perspective of the Supreme Court, long-time scholar and constitutional law commentator Lawrence Tribe comments:
In the vacuum that is created when the rule of law collapses, tyranny and fascism are likely to arise. That possibility, unfortunately, looms over us anyway, with a Court that is undermining voting rights, is doing nothing to correct partisan gerrymandering, turning back the clock on minority rights and human rights and the rights of bodily autonomy.
In the 2010 decision of Citizens United, the Supreme Court said that laws preventing corporations and unions from expressing their preference for candidates go against the First Amendment’s freedom of speech. In a position opposite that of the Supreme Court of Canada in the 2004 case of Harper v Canada, the majority for the U.S. Supreme Court struck down spending limits on third parties. This will ensure greater inequality in what was already an unequal electoral process. The Court also struck down later cases attempting to promote transparency and instead allowed the use of dark money.
In Supreme Inequality: The Supreme Court’s 50 Year Battle for a More Unjust America, Adam Cohen writes that “the Court’s new hardline conservative majority (with Alito joining Thomas, among others) made it’s big move” to open the field for big business and pro-business conservative organizations to spend massively in support of their favored candidates. The decision dismantled the campaign finance regime – a goal explicitly set by prominent Republican election lawyers. The captains of industry in Atlas Shrugged would have rubbed their hands with glee at such a result, unlikely as it would have seemed in 1957.
The dissenting judgement of the liberal-minded justices, written by Justice Stevens, notes that corporations “have no consciences, no beliefs, no feelings…” Corporations also pay lower taxes than most citizens, issue stock for capital, and “live forever.” While corporations can create a more robust economy (furthering public good), these court decisions ensure they instead become powerful players in the political process. Adam Cohen notes that in a system where large contributions become a vital part of any campaign, the large and wealthy corporations disproportionately affect government policy. He cites an important study by Martin Gilens of Princeton that confirms this bleak reality.
Coming up, the Court is expected to hear cases about various kinds of state manipulation and gerrymandering of districts. The conservative super-majority will likely favour arguments supporting efforts to suppress the voting rights of ordinary citizens. We can almost certainly expect the current lineup on the Court to further skew the voting process in favour of the wealthy and powerful. The result is a diminished American democracy.
Environmental protection and “frightening” prospects
In Atlas Shrugged, Hank Rearden and his fellow plutocrats believe that nature is available for capitalist exploitation without limits, and that a pristine wilderness is uninteresting and unworthy of preservation. One of the “John Galt strikers”, oil baron Ellis Wyatt, considers it perfectly acceptable to blow up his oil fields to protest Congress’ new regulations. In the world of Rand, his actions are heroic and praiseworthy even though this shocking act of vandalism would have heavily polluted the surrounding landscape.
In the post-Trump era, the U.S. Supreme Court has shut down any attempt by Congress to legislate and assert control over environmental protection matters. An early example of the super-conservative majority in action is the June 2022 decision of West Virginia v EPA. The ruling is a blow to the powers of the Environmental Protection Agency. For example, the agency will now have a much more difficult time enforcing the Clean Air Act without a detailed regulation enacted by Congress. It curtails the EPA’s options for regulating greenhouse gas emissions.
The Court creatively employed a new tool, the “major questions” doctrine, to realign governmental powers and restrict the workings of the administrative state. In simple terms, the Court held that the EPA has no power to make administrative decisions, such as regulating electricity production, that involve a question of extraordinary economic and political significance. The test has been criticized as highly imprecise and subjective.
Justice Kagan noted in her dissent that, before this decision, the Court had not successfully applied the major questions doctrine. Commentators exclaim the decision may fundamentally change what the federal government does. It could very well mean that important technical decisions will be left solely to a political body that may not understand them. Justice Kagan ends her dissent with a stirring appeal saying that “the Court appoints itself – instead of Congress and the expert agency – the decision maker on climate policy. I cannot think of many things more frightening.”
It is impossible to read the majority ruling and not recognize a highly conservative policy preference at work. One that favors business interests over the needs of ordinary citizens and the nation for a clean, sustainable environment. The public good clearly suffers.
2023 promises to see more significant environmental matters reach the Supreme Court. One worth mentioning is Held v State of Montana, in which a group of young people claim that Montana’s policies worsen the climate crisis by promoting fossil fuel industries such as coal. They claim a violation of their rights under the state’s Constitution to a clean and healthful environment. The track record of the current members of the Court are not encouraging for the plaintiffs.
Fiction meets the real-world
For the longer term, the question is what it will take to establish a Supreme Court that breaks out of the Randian world view. It is surely time for the Court to display a willingness to consider the public interest when environmental issues are raised.
Ayn Rand’s didactic fictions – with their fantastic depiction of extreme individualism and a blind commitment to a rugged, no-holds barred form of capitalism – now run parallel to the real-world decision-making of the conservative-dominated U.S. Supreme Court.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
About Rob Normey
