April 2, 2013 · 1 Comments
By Jeffrey R. McCord of The Investor Advocate
April 1, 2013
In the early days of his brilliant career as legal journalist and commentator, Anthony Lewis, who passed at age 85 on March 25, referred to a vision of the Supreme Court that served as his touchstone:
“[W]hen the channels of opinion and of peaceful persuasion are corrupted or clogged, these political correctives can no longer be relied on, and the democratic system is threatened at its most vital point. In that event, the Court, by intervening, restores the processes of democratic government; it does not disrupt them . . .”
This view, expressed by Justice Harlan Fiske Stone in a footnote to his opinion in U.S. v. Carolene Products Co., decided in 1938, profoundly influenced Mr. Lewis. In that case, Stone upheld a federal statute prohibiting the interstate sale of “filled milk” – that is, milk or cream reconstituted with fats or vegetable oils from non-dairy cow sources.
“Lost my Faith in the Idea of Progress”
Yet, by the time the famously optimistic Lewis retired from his New York Times op-ed chair in December, 2001, he said this to his exit interviewer:
“I have lost my faith in the idea of progress. I mean that in the sense that it was used at the beginning of the 20th century, that mankind is getting wiser and better . . .”
Was Mr. Lewis’ journey a classic “coming of age” story of lost optimism after 50 years spent covering and opining on great matters affecting and defining the legal rights of people of color, consumers and all citizens in a free society? True, Mr. Lewis was being interviewed in the fateful months following the Bush v. Gore decision that placed in power an Administration in which fact-based governance had given way to rule by the certainties of religious dogma and class-driven anecdotal evidence. Indeed, Mr. Lewis said as much:
“[C]ertainty is the enemy of decency and humanity in people who are sure they are right, like Osama bin Laden and John Ashcroft [President Bush’s attorney general and a Christian rightist].
Another source of disappointment for Mr. Lewis, who as an American student sympathized with the democratic socialist movement in Britain, must have been the outcome of a little noted (by average citizens) battle to preserve legal accountability for Wall Street and Fortune 500 magnates and the accountants and lawyers who work for them. The first battle in a war to hold corporate wrongdoers accountable that continues to this day was fought over one of then House Speaker Newt Gingrich’s “Contract with America” legislative measures. He called it “common sense legal reform.”
This was in the early and mid-nineties when many in Washington were certain that global free trade and freely moving markets, unfettered by regulation, would inevitably lead to progress. Humans acting on behalf of their enlightened self-interest would lift all boats in a rising economic sea.
And in those days, Congress and President Clinton enacted the free trade agreement with China and tore down the Glass Steagall Act wall between consumer-oriented depository banking and lending and corporate-oriented merchant and investment banking. During this same period, Mr. Lewis witnessed Congress and his beloved Supreme Court act to slash the legal restraints upon regal CEOs and a new class of global financial entrepreneurs.
“Tilting the Scales of Justice”
To Mr. Lewis and other notable voices in the wilderness, including Congressman Ed Markey, then SEC Chair Arthur Levitt and distinguished Harvard Law Professor Arthur Miller (Harvard’s web Site claims he once taught Chief Justice John Roberts), Newt Gingrich’s “common sense” legal reform legislation would tilt the scales of justice away from ordinary consumers and investors. Here is how Mr. Lewis boiled down the issues at stake:
“Prevent victims of securities fraud from suing. Immunize company officials who manipulate the price of stock by false statements. Stop lawsuits against accountants and lawyers who were involved in savings-and-loan scams. Good ideas? Not many Americans would think so. But those are some of the things that would result from passage [of the legislation formerly known as the Private Securities Litigation Reform Act of 1995].”
In his February 3, 1995 op-ed (“Tilting the Scales”) Mr. Lewis ridiculed the description of “common sense legal reform” as “Orwellian”. “A more accurate title would be the Protect the Wrongdoers Act,” he said.
And, in prophetic words that haunt us to this day, Mr. Lewis added:
“The effect of [the bill] and its real purpose are to insulate the rich and powerful from being called to account at law.”
In the months and years following that op-ed, Mr. Lewis witnessed enactment of that “Orwellian” legislation and, later, the explicit confirmation by the Supreme Court (in Stoneridge Investment Partners v. Scientific-Atlanta, Inc.) that accountants, lawyers and corporate executives who knowingly aid, abet and collude in securities frauds cannot be sued by their victims to recover their losses. Other Congressional measures and Court decisions (such as Citizens United) tilted the legal and political playing fields further away from citizens to favor corporations and wealthy oligarchs.
Mr. Lewis also lived to see the inevitable consequences of liberating the self-interested from legal restraints – the worst financial and economic crisis since the Great Depression. And, the rich and powerful perpetrators of the catastrophe have not been called to account at law.
“It’s Worth Appealing to Reason”
Twelve years ago, Mr. Lewis did conclude his exit interview on a somewhat upbeat note:
“I’m not willing to give up on rationality . . . Look, why have I been writing columns rather than jumping off the George Washington Bridge? I believe it’s worth appealing to reason.”
Like Mr. Lewis, most of us excluded from the ranks of the one-percent choose not to jump off bridges. Rather, we cling to the belief that rationality and fact-based decision-making will again hold sway within the halls of Congress and high precincts of the Judiciary; that the Supreme Court may again “intervene to restore the processes of democratic government” that are “clogged and corrupted” by the rich and powerful.
In the months and years following that op-ed, Mr. Lewis witnessed enactment of that “Orwellian” legislation and, later, the explicit confirmation by the Supreme Court (in
By Jeff McCord