December 20, 2010

The Supremely Corrupt Court


The NYT had a piece by Adam Liptak detailing how the Roberts court takes more business cases than previous courts, and issues pro-business decisions a greater portion of the time. These trends already existed with the Rehnquist court, but the vector is accelerating.

The chamber’s success rate is but one indication of the Roberts court’s leanings on business issues. A new study, prepared for The New York Times by scholars at Northwestern University and the University of Chicago, analyzed some 1,450 decisions since 1953. It showed that the percentage of business cases on the Supreme Court docket has grown in the Roberts years, as has the percentage of cases won by business interests.

The Roberts court, which has completed five terms, ruled for business interests 61 percent of the time, compared with 46 percent in the last five years of the court led by Chief Justice William H. Rehnquist, who died in 2005, and 42 percent by all courts since 1953. Those differences are statistically significant, the study found…..

A study prepared by the Constitutional Accountability Center, a liberal group, examined the center’s success rate in the Supreme Court. It found that the positions supported by the chamber prevailed 68 percent of the time in the Roberts court, compared with 56 percent in the last 11 years of the Rehnquist court, a period without changes in the court’s membership….

Doug Kendall, president of the Constitutional Accountability Center, [said] the numbers proved that the Roberts court increasingly sided with corporate interests. He also said the study documented “a sharp ideological divide that did not exist before 2005.” In the last 11 terms of the Rehnquist court, the five more conservative justices voted for the chamber’s position 61 percent of the time, while the four more liberal justices voted for it 48 percent of the time.

In the first five terms of the Roberts court, the corresponding bloc of five more conservative justices voted for the chamber’s position 74 percent of the time, and the four more liberal justices 43 percent of the time.

This demonstrates the increasing corruption of the courts, their subversion from democracy and the original intent of the framers of the Constitution. I’ll detail each of these.
Three points stood out for me.
1. The piece places the corruption process in the context of the history of neoliberal corporatism over the last 40 years. Specifically, it cites the 1971 Lewis Powell corporatist strategy memo. As I said about this memo in a previous piece on systematic court corruption,

Lewis Powell, generally considered a “moderate” on the court, but at the time a corporate cadre, wrote a strategy memo encouraging corporations to argue systematically in the courts for free speech and other rights like any other “persons” (as part of the vast corporate assault on democracy he recommended). We see how this systematic perversion of the Bill of Rights was a strategy prescribed by the supreme court itself, as it were . The Citizens United case is just the latest and most visibly egregious of its toxic fruits.

Powell advised the corporate cabal to organize and fund a cell dedicated to pushing pro-corporate, anti-democratic ideology and arguments in the courts, and to recruit government personnel and judges to staff this cell. The corporations heeded the call, and the result was the Chamber of Commerce’s National Chamber Litigation Center.

The chamber now files briefs in most major business cases. The side it supported in the last term won 13 of 16 cases. Six of those were decided with a majority vote of five justices, and five of those decisions favored the chamber’s side. One of the them was Citizens United, in which the chamber successfully urged the court to guarantee what it called “free corporate speech” by lifting restrictions on campaign spending….

The Chamber of Commerce spent tens of millions of dollars in the recent midterm elections, mostly to help Republican candidates. It says that it has 300,000 members, businesses and organizations “of every size, sector and region,” and that its spending furthered the interests of some three million businesses, most of them small ones.

But the chamber’s mission is by no means limited to the elected branches of government. “A central function of the chamber,” it told the Supreme Court in a recent brief, “is to represent the interests of its members in important matters before the courts.”

The vehicle for that is the litigation unit that was envisioned by Mr. Powell, the National Chamber Litigation Center, which says it is “the voice of business in the courts on issues of national concern to the business community.

As the studies cited above show, this strategy is paying off. The numbers may differ, but all agree on the trend. This litigation center is a war room dedicated to corrupting the judicial branch and subverting it from a constitutional, democratic role, to an anti-constitutional, anti-democratic one.
We should be clear on the difference between this kind of NGO and any other. Public interest NGOs in principle seek the public good. That remains true even if, rarely, any of them betrays that trust. Such an example would in fact be a bad apple, an abuse.
But pro-corporate groups are in principle conspiracies against the public interest, the citizenry, democracy, and sovereignty. They are by definition anti-social in the same way a corporation is a clinical sociopath, by legal definition and circumscription of its “responsibilities”. By now we have sufficient empirical evidence that large corporations only harm society and the economy. They produce nothing which wouldn’t be produced far more effectively without them. And meanwhile the destruction they cause is incalculable. The balance is clear. They are purely destructive, enemies of America. So it follows that the Chamber of Commerce and any group like it is by definition anti-American.
2. Liptak cites the obscene revolving door of solicitors general in modern times.

From 1952 to 1981….former solicitors general usually became judges, joined law schools or worked as public servants. In the next 15 years, they split their time between academic and legal work, often consulting with law firms with specialized Supreme Court practices.

Starting in 1996, every former solicitor general, with one exception, has gone on to supervise a Supreme Court practice at a major law firm, earning as much as $5 million a year. The exception is Justice Elena Kagan, who joined the court in August.

These specialists make their livings representing business interests, and they have used the skills they honed in government service to achieve notable successes in the Supreme Court.

Yeah, “skills”. That’s what they also call “talent”. (Kagan may be an exception that proves the rule, if she turns out to be the corporate lackey we fear. From the point of view of the corporate cabal, it’s better if someone goes right onto the court than if she goes to work arguing before it on their behalf. Especially since she was incompetent as a litigator; her elevation to the court is a classic case of wingnut welfare.)
By now the solicitor general position is institutionalized corruption. It seems to be a given that as a government cadre before the SCOTUS one is auditioning for a subsequent corporate role before one’s friends and colleagues on the court. The court knows this from the outset and tacitly approves it. The incest must be suffocating at times, if anyone involved has even a shred of conscience left. But I doubt that’s often a problem. By now the institutionalized sociopathy of the system selects for such traits in the first place in its staffers, and systematically inculcates and reinforces them over decades of training and acculturation.
This runs directly counter to the assumptions and prescriptions of even Alexander Hamilton, the most pro-business of the Founders. Hamilton took it for granted that a revolving door between the courts and powerful private interests would, on its face, render the judiciary illegitimate.
As he wrote in Federalist #78:

Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity.

This was his core argument for giving judges tenure for life with guaranteed salaries, that it would greatly lessen the chance of the hated revolving door starting to spin. So by the pro-business Hamilton’s own contention, today’s revolving door is corruption on its face. (I don’t agree with his elitism, of course. Any intelligent person of integrity is far more qualified to be a judge than a corrupt savant.) Strict corruption, we can call it. No civilized society would allow it.
This part of Liptak’s discussion also touches on the Robert’s court’s increasing judicial activist corporatism.
3. Here’s a metric of the intensifying corruption:

David L. Franklin, a law professor at DePaul University, wrote in another article in The Santa Clara Law Review last year that the chamber had been quite successful in the Roberts court in four of what he considered five main categories of cases — punitive damages, arbitration of consumer and other disputes, the standards for early dismissal of lawsuits, and federal pre-emption of state laws governing injury and other suits. The “conspicuous exception,” he said, was employment discrimination…….

Even in employment discrimination cases, however, the available numbers are subject to two interpretations. True, the Roberts court’s 16 decisions have been evenly divided, according to an analysis by Professor Epstein at Northwestern. But the Rehnquist court ruled in favor of people claiming discrimination more often — 64 percent of the time.

Three of the five are structural. Two of those involve setting up barriers between the citizen and access to the law, the other is anti-federalist. The other two are more political. It’s interesting that the one which seems to have been relatively neglected, employment discrimination, is a typical corporate liberal issue, and therefore pretending to be anti-discrimination is part of neoliberal tactics.
So perhaps that caveat about how even the court’s commitment to anti-discrimination is eroding is a metric of the eroding position of corporate liberals themselves. The more the SCOTUS openly says it no longer cares about discrimination (the Walmart case is the most important pending example, although it also involves citizen access), the more we can take it that corporatism is abandoning the liberal scam and moving toward fascism.
So in conclusion, this Liptak piece, though containing some typical NYT bias, gives a good rundown. It demonstrates how, in the words of a typical criminal:

A prominent Supreme Court advocate who often represents businesses, Maureen E. Mahoney, chose her words carefully when asked at a chamber news briefing in September whether the Roberts court was especially receptive to the kinds of arguments pressed by corporations.

“The best court for getting a fair hearing on those issues,” she said, “is the Supreme Court.”

And that in turn is an inverse metric of the court’s legitimacy.


  1. Thanks for posting this.

    What a bunch of corporate fascist pigs these Supreme Court Judges are!!

    This reminds me of an extraordinary quote from the French philosopher Gilles Deleuze: “Plutôt balayeur que juge”. (It’s better to be a street sweeper than a judge.)

    It looks like those of us who are opposed to all forms of fascism, whether already present or impending, have our work cut out for us.

    Comment by Frank — December 20, 2010 @ 7:50 pm

    • Yes, a street sweeper does real work and doesn’t assault and rob. SCOTUS judges and thugs like solicitors general tend toward the opposite.

      (The lower level courts still have a mix.)

      Comment by Russ — December 21, 2010 @ 2:31 am

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