Private Eye, a British satirical magazine with a rollicking history as the defendant in lawsuits, mocked its persecutors as Messrs. Sue, Grabbit & Runne, a fictional firm of shyster lawyers whose name spoke of avarice and plunder.
In Washington today, there must be a firm called Sue, Settle & Swagger, which works for left-wing groups and Democratic administrations, using litigation to sidestep democratic legislating and regulating.
Here’s how it works. The Bureau of Land Management agreed this month to settle a case that had been brought against the Trump administration by environmentalist groups such as the Sierra Club and the less-well-known Citizens for a Healthy Community. The lawsuit accused the bureau of not doing enough to consider climate change and putative harm to sage grouse. The agency, which now works for President Joe Biden, agreed to settle the case by stopping oil and gas leasing on more than 2 million acres of Colorado.
The pattern is familiar. When economic activity is approved by a business-friendly administration, left-wing activists go to court and tie it up until a friendly administration such as Biden’s arrives. Today’s administration, stuffed with militants who used to work for activist groups, can then be trusted to abandon the case.
Once the settlement is approved by a court (there no longer being any controversy between the parties), the Left pockets another anti-business policy achieved without any input from people who’d prefer to pay less rather than more to light their homes or run their cars.
The point is not that Democrats pretended to be business-friendly on the subject of energy and the environment. They couldn’t. President Joe Biden boasted during his campaign that he’d throttle the oil and gas industry. He even shut down the Keystone pipeline on his first day in office as a token of his green credentials.
So hypocrisy isn’t the central issue in the modus operandi of Sue, Settle & Swagger. It is, rather, that the Left-Democratic litigation complex is exploiting the judicial system to hogtie initiatives it doesn’t like until a friendly administration arrives to hand it its preferred policy on a silver platter.
Pondering the potential of this abuse, David Bernhardt, who was President Donald Trump’s secretary of the interior and was a named defendant in the Colorado suit, told me, “There will be a concerted effort to settle controversial litigation in a way favorable to the policy objectives of the litigants and their sympathizers in the administration.”
One extra attraction of the method, as litigants well know, is that court-approved settlements can be used to hobble future administrations. Suing can thus be even more effective than winning elections, for it can lock in a policy beyond the tenure of the administration that agrees to it. It’s also a way of siphoning taxpayer money to favored left-wing organizations, which are rewarded in the settlements.
Everyone on the Left wins. The losers are taxpayers, ordinary Americans, and democracy itself.
But that is increasingly how the Left rolls. Katherine C. Epstein, associate professor of history at Rutgers University,
wrote
in the Wall Street Journal recently that “seek[ing] a shortcut through the courts” is a whole lot easier for Democrats than persuading voters that the party’s ideas are better than those proposed by Republicans. That tough process of persuading is, however, what democracy is about.
All across the political and policy landscape, the Left and its party prefer to achieve policy aims via court decisions that guillotine debate. That — the ability to foreclose discussion — is what they were fighting to retain for 50 years after the Supreme Court’s Roe v. Wade decision enshrined abortion as a supposed constitutional right. It is still possible to keep abortion legal, but the Left will have to work to persuade voters now that there is no court decision to wall the subject off from debate. It was so much easier to say settled law made all discussion moot.
What we see is essentially a variant of the Left’s conversational tactic of suggesting that opinions it doesn’t like are outside the bounds of polite and tolerant discussion. It’s a way of saying a thing is settled, beyond dispute, a matter of established law and precedent — so shut up.
The diversion of what should be democratic decisions into courts is not totally one-sided, but it is much more naturally a phenomenon of the Left and of Democrats. Business people, entrepreneurs, and industrialists are the doers in our society, the ones who want to take action and begin a project. It is the naysayers and safety fetishists, those reflexively opposed to freedom — the quibblers — who want to stop them.
