Long before she became President Donald Trump’s nominee for surgeon general, Casey Means was sounding the alarm about glyphosate, the main ingredient in the weedkiller Roundup. Means wrote about the toxicity of glyphosate and reiterated her worries during her recent Senate confirmation hearing, telling senators that she is “gravely concerned about the health impacts of these chemicals.”
In a blog on her hugely influential website, Means also notes the alarming lengths that chemical manufacturers are going to in order to avoid any accountability for the harms their products cause. She rightly accuses Bayer-Monsanto, the manufacturer of glyphosate, and other chemical giants of “waging an all-out campaign to prevent the science of the toxicity of pesticides to get out, and to influence laws to prevent people from being able to sue for health effects.”
Means is right about Bayer’s efforts to shirk responsibility for the harms caused by Roundup. In fact, the company’s lawyers are going all the way to the Supreme Court this year to try and stop the seemingly endless number of lawsuits brought by or on behalf of consumers who have become seriously ill — and, in some cases, died — after years of using Roundup.
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Bayer’s efforts to protect its bottom line underscore a related and equally important issue that supporters of the Make America Healthy Again movement spurred by Health and Human Services Secretary Robert F. Kennedy Jr. and allies like Means should be outraged about: The relentless corporate assaults on Americans’ Seventh Amendment jury trial rights and the ways those assaults threaten public health and safety, workers’ rights, and the very foundation of what our legal system is all about.
From trying to use federal preemption (the theory at the heart of Bayer’s Supreme Court case) to wipe away lawsuits by those allegedly sickened by toxic chemicals to jaw-droppingly expansive forced arbitration clauses that essentially aim to shut down our justice system, companies are trying to rewrite — or, perhaps more accurately, erase — the law in ways that will ensure those who are poisoned, cheated, or otherwise wronged will never be able to find justice or have their day in court.
The public is starting to catch on to the deep and pervasive harm caused by these corporate power grabs. Poll after poll finds strong, growing, bipartisan opposition to forced arbitration, the fine print clauses that prevent workers and consumers from taking their cases to court. In fact, a poll recently revealed that 9 out of 10 Republicans oppose the practice. I’m betting they’re equally appalled by attempts to use other tactics, such as federal preemption, to achieve similar aims by claiming that one label on a product should wipe away decades of international studies showing the harm that product causes, as Bayer is doing in the Roundup suits.
The Roundup label in question is presumably based at least partly on what Means has characterized as “ghostwritten papers” paid for by Bayer-Monsanto to “promote a favorable opinion on pesticides.” She has rightly called such deceptive actions “shady tactics,” and has tried to educate the public about their consequences.
Our courts, too, are beginning to push back on the anti-Seventh Amendment crowd by striking down several overly aggressive and illegal uses of forced arbitration clauses to cheat workers and others. My organization, Public Justice, has won two Supreme Court decisions — both unanimous and ideologically bipartisan — that ended some of those practices. In those two cases, we convinced the court that arbitration could not be used to deny hardworking Americans their day in court when their employers tried to cheat them out of wages.
In one case, the court ended forced arbitration for virtually all transportation workers, including the truck driver we represented, ensuring they can sue rather than be forced into secret, pro-employer arbitration hearings. In the other, we successfully represented a fast-food worker and single mother, whose employer tried to force her case out of court once it became clear, as the court heard the facts of her case about wage theft, that it would probably lose. Those cases were rare moments of bipartisan agreement at the court that underscore a growing impatience and intolerance for corporate attempts to evade the law and circumvent the Constitution.
Now it is time for lawmakers to follow the people’s lead and come together across political divides to end these tactics entirely. Some lawmakers have already courageously done so. Sen. Lindsey Graham (R-SC) and former Rep. Matt Gaetz have both expressed skepticism about the use of arbitration clauses to lock the courthouse doors. And public health and environmental advocates, including Kennedy and Means, have spoken out against “get out of jail free” cards for companies that threaten our food supply and endanger our air and water. Indeed, holding perpetrators accountable is a central tenet of Means’s writings and Kennedy’s activism at the Waterkeeper Alliance nonprofit network that he founded.
“Too many people are sick right now,” Means notes on her blog, “from kids with autism, ADHD and asthma, to middle aged friends with infertility, gut issues, and anxiety, to older friends with cancer and early dementia.” I’ll add that too many people are also being harmed in other ways right now, too, including through wage theft, dangerous pharmaceuticals, and deadly consumer products. The ties that bind so many of these injustices together is the feeling of invincibility that corporations increasingly have because of their creative efforts to avoid the courtroom and any accountability at all.”
“It’s time,” Means implores, “to wake up.”
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If we are serious about making America healthy again — or safe for our children again, or fair for hardworking Americans again — we have to come together, across all ideological divides, and protect our Constitution’s Seventh Amendment.
As Graham has said, “We need to open up America’s courtrooms,” and give everyone their day in court. And that’s the kind of “good energy,” to borrow a turn of phrase from Casey Means, that our country desperately needs now.
Lauren Barnes is CEO of Public Justice, a nonprofit legal organization that represents workers and consumers.