Will the next Supreme Court justice restore balance to the most pro-business court since the Gilded Age?
Before Felix Frankfurter was appointed to the United States Supreme Court, he taught a class at Harvard Law School on the history of the Court. Years later, on the Court, the far-sighted Justice Frankfurter admonished that “it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court’s giving effect to its own notions of what is wise or politic.”
Since then the tune has changed. The recent five-judge conservative bloc on the Roberts Court, with Justice Antonin Scalia an essential part, systematically and predictably pronounced policy — often to the advantage of big corporations. A recent study found the Roberts Court far more favorable to business interests than its predecessors, with all five members of the recent right-wing bloc among the top ten most business-friendly judges in the last 65 years. Justice Alito was number one and Chief Justice Roberts number two.
Analyses showed the success rate of the United States Chamber of Commerce, the big business lobby, at 69 percent; up from 56 percent during the Rehnquist Court, and 43 percent during the Burger Court. That 69 percent win/loss ratio actually understates the “Roberts Effect,” as an aggressive Chamber, knowing it had a friendly Court, brought cases that pushed the extremes; losing these cases just kept the status quo — not really a “loss.” Many Chamber victories were significant: making employment discrimination harder to prove; letting manufacturers and distributors fix minimum prices for retail goods; letting mutual funds advisors include misstatements made by others in the documents prepared for investors; and even putting the religious rights of corporate entities over the rights of employees in Burwell vs. Hobby Lobby.
Big corporations hate being hauled into court and having to face juries. Juries are the constitutional institution designed to protect ordinary citizens against the wealthy and powerful. Corporations are now our most wealthy and powerful entities, and the five Republican appointees protected them: raising pleading standards for victims; letting companies push disputes into corporate-favored arbitration; restricting Americans’ ability to press cases of large-scale wrongdoing in class actions; making it more difficult for workers to hold employers accountable for workplace harassment; and making it harder for consumers with serious side effects to sue the drug companies.
It’s been a dizzying ride for regular Americans. Washington Post columnist Dana Milbank observed of a decision earlier this year: “The Roberts Court has found yet another way to stack the deck in favor of the rich.”
The dreadful decision in Citizens United vs. Federal Election Commission was the culmination of the Republican appointees’ careful work to open American politics to corporate influence. It was once the opinion of the United States Supreme Court that “to subject the state governments to the combined capital of wealthy corporations [would] produce universal corruption.” No more.
Citizens United, on a 5–4 split, opened the floodgates for unlimited, anonymous corporate spending in elections, somehow found corporate corruption of elections impossible, and released the “tsunami of slime” that has fouled our elections. Such a brute political role for corporations would shock the Founding Fathers, who foresaw no political role in our republic for the corporations of the time.
Now our elections are awash in corporate cash. The oil and gas industry has already spent over $70 million this election cycle (not counting untraceable “dark money”). The pharmaceutical industry has spent nearly $45 million. The Koch Brothers have vowed to spend $750 million on the 2016 election. That’s more than the George W. Bush and John Kerry campaigns spent combined in 2004. Since the 2010 Citizens United decision, more than $1.5 billion in unlimited contributions, including more than $500 million in secret contributions, have been spent in federal elections.
Elections have results, as people are fond of saying. And the results in Washington are disheartening. Legislation to level the playing field for working families is dead on arrival in the Citizens United Congress. Democrats’ efforts to raise the minimum wage, close the gender wage gap, and provide paid family leave have been completely shut down. My bill to make sure millionaires and billionaires pay their fair share of taxes can’t even get a hearing. Never mind making fossil fuel giants pay the costs of the carbon pollution driving global climate change. In many ways, the rotten effects of dark money are seen less in what we do than in what we don’t do.
The American people see what’s going on. And they don’t like it. Less than one-third of Americans have confidence in the Supreme Court. Most tellingly, by a ratio of nine to one, Americans now believe the Court treats corporations more favorably than individuals.
All of this because an activist, corporatist, right-wing bloc of the Supreme Court had five votes. The prospect of a new justice opens the opportunity to revisit an array of decisions, Citizens United chief among them, that made the Roberts Court the most “pro-business” court since the Gilded Age, and restore the precedents so many of these 5–4 decisions overturned. Which is why Merrick Garland, an experienced and highly respected judge, faces Republicans’ unprecedented refusal to move on his confirmation. But with as many as four Supreme Court vacancies possible in the next two presidential terms, the Court may soon be shifting in ways that reverberate for a generation. In the struggle against corporate domination of America’s economy and elections, the stakes could not be higher.