Beyond the hot-button social issues that have captured the public’s attention around the nomination of Brett Kavanaugh to the Supreme Court, there is another category of important cases that impact the livelihoods and the financial well-being of every American.
These cases are important to anyone in this country who earns a paycheck, has a savings account, uses a credit card, makes a monthly mortgage or student loan payment, owns stock or invests in a retirement account. In short, nearly every American.
Put differently, anyone who cares about his or her wallet should be concerned about how the Supreme Court rules in these cases. And, according to a new report by Better Markets, every American looking out for his or her own financial well-being should be very concerned about Brett Kavanaugh joining the high court.
Judge Kavanaugh, during his 12 years on the D.C. Circuit bench, has compiled a record of disregard for the economic interests of working Americans, particularly those who have been ripped off by corporations.
There is little doubt that if Judge Kavanaugh is confirmed, he will tilt the scales of justice in favor of corporations over the interests of consumers, workers, investors, students and retirees, while making it harder for Wall Street’s cops on the beat to protect the public from scammers, predators and crooks.
Shortly after Judge Kavanaugh was nominated to the Supreme Court by President TrumpDonald TrumpBaldwin calls Trump criticism following 'Rust' shooting 'surreal' Haley hits the stump in South Carolina Mary Trump files to dismiss Trump's lawsuit over NYT tax story MORE on July 9, the Trump administration began touting his pro-business decisions and his track record of voting against regulatory agencies charged with protecting the health, safety, welfare and financial security of Americans.
But being good for business, which usually means the largest corporations in the world, is often bad for workers, consumers, investors and victims of all sorts of illegal conduct.
Better Markets has found that Judge Kavanaugh has repeatedly ruled in favor of business interests, while displaying little regard, or even awareness of, the extensive harm they can cause to hard-working Americans.
Take, for example, his ruling in PHH Corp. v. Consumer Financial Protection Bureau (later overturned by the full D.C. Circuit sitting en banc). This case revealed Judge Kavanaugh’s strongly held view that independent regulatory agencies like the Consumer Financial Protection Bureau (CFPB) pose a grave threat to individual liberty.
Meanwhile, the CFPB has returned more than $12 billion in ill-gotten gains from financial predators to more than 25 million ripped off Americans in just five years; it is one of the most successful consumer protection agencies in American history.
Judge Kavanaugh’s view, however, was that because the CFPB was headed by a single director rather than by multiple directors, who could only be removed for cause, the agency posed an unacceptable threat to the very foundation of our constitutional government:
“This is a case about executive power and individual liberty,” Judge Kavanaugh stated at the outset of his opinion. Further, he declared, “Independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.”
Noticeably absent from Judge Kavanaugh’s opinion was any acknowledgement of the enormous benefits that agencies like the CFPB provide to consumers, investors, workers and other Americans by protecting them from the relentless, ingenious and costly predatory actions of corporations, including many in the financial services industry.
In other cases, Judge Kavanaugh has adopted restrictive and technical interpretations of the securities laws, when those laws actually deserve a broad reading to serve their remedial purposes.
He has displayed hostility to the long-standing principle that courts should defer to the expertise of administrative agencies tasked with implementing legislation. He has also forcefully challenged agency authority to adopt rules that have a “major” impact — no matter how beneficial — absent special indications from Congress.
This hostility to sensible regulation can be found time and time again in Judge Kavanaugh’s opinions, and it provides us with an insight into the one-sided, pro-corporation and anti-consumer viewpoints that will likely be the model for the rulings he makes on the Supreme Court.
The Supreme Court’s October agenda is stacked with cases that will profoundly affect nearly every aspect of American life, from social issues to cases involving economics, finance and consumer and investor protection. These financial cases include:
- whether the Securities and Exchange Commission can aggressively go after fraudsters who rip off investors;
- how settlements in class-action lawsuits should be distributed;
- whether corporations can force defrauded consumers into secret, binding arbitration and take away their right to a day in court; and
- whether states can enforce tough consumer protection laws.
It is clear that the Supreme Court’s rulings in all of these cases will prove to be vitally important to the livelihoods, wealth, financial well-being and quality of life of every American.
It is equally clear that as a Supreme Court justice, Judge Kavanaugh will follow his record of favoring corporations and showing hostility to federal regulatory agencies, threatening the economic interests of every American.
Dennis M. Kelleher is president and CEO of Better Markets, a Washington-based independent organization that promotes the public interest in financial reform, financial markets and the economy.