Guest Post: Court Reform Is An Economic Issue
Democrats Need to Start Acting Like It
Seth Frotman is the former general counsel of the Consumer Financial Protection Bureau. He’s now a visiting senior fellow at Towards Justice and the Center for Consumer Law and Economic Justice at the University of California Berkeley School of Law.
Americans are angry, and they have every right to be. Costs are out of control: groceries, rent, childcare, and healthcare are all going up. And while this crisis isn’t new, what’s clear is that the Trump administration didn’t just ignore it -- they made it worse.
From reckless tariffs that raised prices on everyday goods to a pro–junk fee agenda disguised as deregulation, Trump’s policies have helped drive up costs while shielding those responsible. Those same policies have provided Trump cover to give massive handouts to his friends. The American people know it. They’re angry -- and they rightfully blame Donald Trump and the billionaires his government serves.
Democrats need to stay laser-focused on the cost of living and economic issues families face every day. They need to keep calling out who’s responsible and offering real plans to rein in corporate abuse.
But there’s a critical missing piece in the conversations we are currently having on affordability. Progressives need to connect the dots between the conservative agenda wreaking havoc on families’ household budgets and Trump’s hand-picked federal judges.
Last month, Bharat painstakingly outlined how courts and Trump-appointed judges have been at war with working people. But let’s remind ourselves what the results of their work look like for a typical person:
The car loan you had to take out to get to work is packed with junk fees. The monthly payment on it is even higher thanks to a lower credit score from your child’s cancer scare.
Your student loan payment is now hundreds of dollars more each month than it was just a few months ago. You thought the loan from that scam trade school—the one that promised the world but left you with a worthless certificate—was finally going to be canceled because of their shady practices. That’s no longer happening.
This month is even worse than usual. You had to buy plane tickets for a family funeral and got hit with junk fees to bring a bag. When you check your monthly credit card statements, you find yet another charge—for subscriptions you don’t remember signing up for but can’t seem to cancel. And when you struggle to pay that bill, the fees start piling on, driving you deeper into debt.
You had a shot at a higher-paying job, but you’re stuck in a noncompete at your service gig. Your spouse also wants to leave his hospital job for a better-paying nursing position, but he’s trapped by a “stay-or-pay” contract term—to leave his job, he’d have to pay thousands for a “training” he barely remembers.
You hoped to make up the difference with some overtime, but your boss says you no longer qualify. And just when you thought you might finally start planning for retirement, you find out any hope of a pension is gone and you’re staring at a stack of confusing investment paperwork from a “financial advisor” who keeps calling to sell you products you don’t totally understand, but that feel off.
Opinion after opinion. Case after case. Each of these examples and countless others involved an attempt to deliver real help to working people -- blocked by a Republican-appointed judge at the request of right-wing litigants before anyone could feel the benefits.
We are right back to where we were in the early 1900s, when Robber Barons used their so-called “judicial oligarchy” to crush any attempt at using democracy to improve the lives of working Americans if it came at the expense of corporate power or profit. Here is how Republican Senator Robert M. La Follette described the courts in 1912:
The judiciary has grown to be the most powerful institution in our government. It, more than any other, may advance or [hinder] human progress. Evidence abounds that, as constituted today, the courts pervert justice almost as often as they administer it. Precedent and procedure have combined to make one law for the rich and another for the poor. The regard of the courts for fossilized precedent, their absorption in technicalities, their detachment from the vital, living facts of the present day, their constant thinking on the side of the rich and powerful and privileged classes have brought our courts into conflict with the democratic spirit and purposes of this generation. Moreover, by usurping the power to declare statutes unconstitutional and by presuming to read their own views into statutes without regard to the plain intention of the legislators, they have become in reality the supreme law-making and law-giving institution of our government. They have taken to themselves a power it was never intended they should exercise; a power greater than that entrusted to the courts of any other enlightened nation. And because this tremendous power has been so generally exercised on the side of the wealthy and powerful few, the courts have become at last the strongest bulwark of special privilege. They have come to constitute what may indeed be termed a “judicial oligarchy.”
Sounds familiar. Today, Trump courts have again become an economic weapon against working families. That makes the courts an economic issue. One side understands this and acts accordingly. It’s time Democrats did too.
Democrats occasionally criticize judicial nominations on economic grounds, but rarely do they explain to the American people what these judges’ decisions actually mean for people’s day-to-day lives.
When faux-populist Donald Trump was out on the campaign trail talking about capping credit card interest rates, did you once hear about how the judges he appointed blocked a rule that would have saved working people hundreds of billions of dollars directly from credit card company profits? Probably not.
There’s nothing noble about treating judicial decisions as being above criticism or off-limits for political discourse. The law, the courts, and the judges who sit on them aren’t the exclusive province of “serious people” with Ivy League credentials and access to closed-door clubs.
The progressive critique of the federal judiciary must start with basic kitchen-table economics. It’s entirely appropriate to draw a straight line from Trump’s judges to the Republican senators who rubber-stamped them and to the devastating economic consequences their decisions have had for working families. Their actions have made American life more expensive, more exploitative, and more dominated by Big Tech and big corporations than ever before. That’s not rhetoric or hyperbole. That’s reality.
We’ve too often let Republicans cosplay as champions of working people—while voting again and again to build a judiciary that kneecaps those very same families at every opportunity.
Our failure to say that clearly -- from the White House briefing room to the candidate with a bullhorn at a union hall -- hasn’t done much to preserve norms. It’s also political malpractice. And it’s time we stood up for the people we claim to want to defend.
Yet simply calling this out isn’t enough.
What’s the plan for next time? How do we actually show people that government can work for them?
One thing is clear -- leaving “the law” to the so-called legal experts has been a disaster for working-class families. That approach has failed. And we can’t afford to repeat it.
Though it may feel counterintuitive at a time when courts seem like the last refuge against lawlessness, we must recognize that the only long-term path out of this political nightmare is a government that is truly responsive to the real economic pain felt by millions of Americans.
A new report released this week by Hannah Garden-Monheit and Tresa Joseph for the Roosevelt Institute begins to lay out the work ahead to meet the scale of the challenge that our broken government presents, including especially to reform a judiciary dead-set on further rigging an already rigged economy. Dozens of interviews with senior Democratic officials, including with many who were “relentlessly focused on economic issues,” make clear the paramount importance of confronting the judiciary’s role in entrenching corporate dominance and undermining the interests of working people.
The report underscores that some of the crucial work ahead will include:
Cracking down on right-wing forum shopping, which allows industry to choose friendly judges and block any regulation it opposes;
Reforming the Administrative Procedure Act to stop “gotcha” decisions that strike down serious regulatory efforts because the government didn’t address a comment in a way that meets Justice Gorsuch’s mood;
Dealing with standing rules that let the US Chamber of Commerce saunter into court to kill any rule it wants while individuals are robbed of recourse when a credit reporting agency erroneously labels them a terrorist.
These recommendations and others like them provide practical solutions to these problems, including jurisdiction-stripping, systemic reform of the court system, and fundamentally changing the drafting of legislation. In short, we need to reimagine the role judges play across our system, particularly with respect to the regulation of corporations.
As I’ve said before, we won’t be able to have an “Economy for All,” or a Care Agenda, or an Abundance Agenda, or any other prescription for a given problem or for the country writ large if we do not confront the obstacles standing in the way of the government’s ability to deliver. All the policy ideas in the world -- all the proposed regulations and model bills and campaign promises -- won’t make a difference if the legal system blocks our democracy.
Any policymaker with a genuine interest in economic justice, and certainly any credible candidate for federal office, must be serious about confronting a judiciary that has become a key arsenal in the assault on working people. And to be taken seriously, that plan must reach far beyond talk about the Supreme Court’s size or makeup.