The 2016 Presidential Election

Ten months away but already the most important election of our lifetime

2016 February

The only thing that’s certain about the incredible presidential campaign we are currently experiencing is that 10 months from now it will be over.

That’s good news. For most of us, election day (November 8, 2016) can’t come fast enough. Unless you are a political sadomasochist, you are already tired of this train wreck of a campaign.

But, it’s also scary news. It’s scary because this is the most important election of our lifetime and we can’t afford for the wrong candidate to win.

That may sound like over-the-top hyperbole, but it’s not. I’m sure you have your own list of reasons why you agree, but here’s mine, and it’s a very short list.

On November 8, 2016:

• Supreme Court Justice Ruth Bader Ginsburg will be 83 years old.
• Supreme Court Justice Antonin Scalia will be 80 years old.
• Supreme Court Justice Anthony Kennedy will be 80 years old.
• Supreme Court Justice Stephen Breyer will be 78 years old.

Think about that. Whichever candidate wins the 2016 election will surely appoint four Justices of his or her choosing to the highest Court in the land. And if the winner is one of the current crop of Republican candidates, that’s very bad news for all of us.

Here’s why:

Nearly five years ago, Erwin Chemerinsky, Dean of the UC Irvine School of Law, wrote in a New York Times op-ed piece following the AT&T Mobility v. Concepcion Supreme Court decision that “The Supreme Court’s decision preventing consumers from bringing class-action suits against corporations is part of a disturbing trend of the five most conservative justices closing the courthouse doors to injured individuals. This is nothing more than a conservative majority favoring the interests of businesses over consumers, employees and others suffering injuries.”

Over the past five years, there have been numerous decisions from the Conservative majority on this Supreme Court that have slowly eroded constitutionally guaranteed rights to access for justice for Americans.

But the Court’s most recent opinion makes it clear how dangerous a Conservative majority can be to the rights of Americans. Only a few weeks ago, a new Supreme Court decision validated Chemerinsky’s fears and made it clear how powerful the Court’s conservative majority has become. The Court’s decision in DirectTV v. Imburgia et. al 577 U.S. ___ (2015) again sided with a corporation over consumers and bolstered the landmark AT&T Mobility v. Concepcion ruling.

New York Times reporter Adam Liptak’s story on the Supreme Court opinion said “the decision, by a 6-3 vote, was the latest in a series of Supreme Court decisions that have made it harder for consumers to go to court to pursue claims of fraud and defective products.”

Liptak quoted Justice Ruth Bader Ginsburg writing in dissent that “these decisions have predictably resulted in the deprivation of consumers’ rights to seek redress for losses, and, turning the coin, they have insured powerful economic interests from liability for violations of consumer protection laws.” Ginsburg’s dissent went on to state that “the ruling acts to disarm consumers leaving them without effective access to justice.”

Following the verdict, Harvey Rosenfield, founder of Consumer Watchdog and one of the lawyers who represented consumers in the litigation wrote, “The Supreme Court has taken away Americans’ only right to obtain justice: their day in court. The more the U.S. Supreme Court allows big corporations to evade accountability, the less confidence Americans have in the judicial branch and the rule of law.”

Justice Ginsburg wrote that she faulted the majority for having “insulated powerful economic interests from liability for violations of consumer-protection laws.”

If the next president appoints four justices that share the views of the current Court conservative majority, the rights of every American will be compromised by the very body created by the Founding Fathers to ensure and protect those rights.

There are many reasons why members of the consumer trial bar are fearful of the damage that would be caused by one of the current Republican candidates becoming President. Much will be written about this in the next 10 months, especially when the Republicans have selected their candidate.

We’ve already seen how the current Republican-dominated Congress has succeeded in turning back the clock on existing laws that provide safeguards for Americans in the areas of immigration, healthcare, voting rights and environmental protection. A Republican president echoing the beliefs of the new conservative faction of the Republican party will do everything in their power to swing the pendulum against those without a voice.

But in my opinion, the fact that the next president will in all likelihood appoint four Justices of the U.S. Supreme Court is the most troubling. If you think that the current group of Republican candidates won’t quickly appoint justices who agree with their over-the-top anti-consumer rhetoric, you are either naïve or not paying attention.

Election day 2016 is 10 months away and the clock is ticking. Unfortunately, it’s also a ticking time bomb.