Joe Biden’s Trial Lawyer Test

Joe Biden’s Trial Lawyer Test
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Does President Biden have any ability to resist the trial lawyers who helped put him in the White House with millions in political donations?  We will soon find out, as the Supreme Court recently asked for the Biden Department of Justice to weigh in on a case involving a golden goose for trial lawyers: Monsanto and the pesticide Roundup.   

The case is called Monsanto Company v. Hardeman. It is one of a long line of cases that trial lawyers have launched across the country in recent years alleging that Monsanto violated state law when it failed to warn consumers that exposure to Roundup could cause cancer. While both sides have notched victories, these cases are a critical gravy train for the nation’s trial lawyers—one California case produced a multi-billion-dollar jury verdict for a single family (later trimmed to a still-meaty $86 million).  

At the Supreme Court, the chief legal question that Monsanto is pressing is whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts state-law claims alleging that Monsanto failed to put adequate warning labels on its Roundup products.   

The Supreme Court hasn’t decided whether to hear the Monsanto case yet, but recently the Court issued an order asking the Biden DOJ, through newly confirmed Solicitor General Elizabeth Prelogar, to state its views on the pertinent legal questions. The order is interesting because the federal government has taken clear public positions already, including in this very case. 

The Environmental Protection Agency has long authorized Roundup for sale, approved Roundup’s label (without a cancer warning), and said that including a cancer warning would cause the product to be “misbranded” in violation of federal law.  And in this very case, just two years ago, DOJ spoke directly on the preemption question in a lengthy brief supporting Monsanto at the Ninth Circuit Court of Appeals. DOJ couldn’t have been clearer about its position: “Mr. Hardeman’s claims of failure to warn in Monsanto labeling are preempted.” 

Given the clarity of DOJ’s 2019 brief in this very case, it might seem like the Supreme Court’s order to the Biden DOJ is almost perfunctory. Well, not so fast. The Biden DOJ, and Solicitor General Prelogar, have already gotten a reputation for throwing longstanding norms out the window and shamelessly flipping sides at the Supreme Court to curry favor with the President’s political allies. In terms of the sheer number of Supreme Court flip-flops, Biden stands alone amongst his recent predecessors.  

And the way he has done it when big-time allies are involved has been particularly egregious. Look no further than the unprecedented steps Prelogar took in early 2021 to scuttle two cases that the Supreme Court had already agreed to hear involving federal funding of abortion and the Trump Administration’s Public Charge immigration rule.

Biden’s team stealthily settled with the pro-abortion parties and those who opposed the immigration rules and then quickly moved to wipe the cases off the Supreme Court’s docket through procedural moves designed to prevent anyone from coming to the defense of the government’s previous positions. 

This history looms large in the Monsanto case because flipping legal positions in the case would serve one of President Biden’s most ardent group of political allies: trial lawyers. Trial lawyers are an engine for the political left—they cut serious political checks and many firms have 98-99% of their employees’ political giving going to liberals. Joe Biden has been a major beneficiary of this support.  

Look no further than the trial lawyers at Morgan & Morgan, whose employees donated almost $2 million to Biden’s campaign efforts (firm-founder John Morgan alone sent a $355,000 check to Biden Victory) before flying presidential-brother Frank Biden to the inauguration on the Morgan & Morgan jet. Oh, and Frank Biden, he works for a firm of trial lawyers in Florida.    

So far, trial lawyers have gotten quite a bit out of President Biden and his congressional allies. Democrats blocked virus-related lawsuit limits in COVID-relief bills. Biden-appointed SEC Chairman Gary Gensler is in the middle of pushing for mandatory climate change and other social disclosures for public companies that would open almost endless new opportunities for trial lawyers to sue every public company in the country and produce the jingle of shareholder money flowing into the pockets of trial lawyers. And House Democrats last month slipped a $2.5 billion tax break for trial lawyers into their Build Back Better social spending bill. 

With President Biden’s trial lawyer allies having had such a successful run already in the Biden Presidency, the big question coming out of the Supreme Court’s recent order is whether Biden can resist the urge to contort DOJ and longstanding practice once again in order to please one of his political allies.   

This isn’t about Monsanto or Roundup or the science surrounding these controversial cases. It is about the political influence of trial lawyers on liberal politicians. Trial lawyers are already gaming the system at the state and local level on a regular basis through the Shady Trial Lawyer Pipeline, a notorious system that politicians and trial lawyers use to funnel money from government coffers into left-wing political campaigns and committees, diverting money away from consumers and into political activism. 

It doesn’t help consumers for that kind of influence and favor-trading to spread into the Department of Justice.  The Monsanto case is going to be a big test of where trial lawyer influence ends. Let’s hope that, this time, the swamp doesn’t prevail. 

O.H. Skinner is the Executive Director of Alliance For Consumers, and the most recent Arizona Solicitor General.

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