A decade ago in Bush v. Gore,1 five Justices on the United States Supreme Court intervened in the 2000 presidential election to halt the counting of more than 100,000 ballots in Florida, thus delivering the presidency to the preferred candidate of America’s largest corporations–like Enron, Haliburton, Exxon-Mobil, Blackwater, AIG and Goldman Sachs. These corporations proceeded to shape public policy in significant ways, promoting financial deregulation, privatization and the spread of corporate welfare, the contracting out of warfare, and the creation of what economist James Galbraith has called a “predator state.”
In 2010, in Citizens United v. FEC,2 a case that dealt originally with the question of whether the electioneering communications provisions of the McCain-Feingold Act apply to “pay-per-view” movies produced by not-for-profit entities, five Justices on the Court, including the two named by President Bush himself–Chief Justice John Roberts and Justice Samuel Alito–reached out to ask a question that had not been posed to them. They then answered it, announcing that private businesses – including for-profit corporations – have a right to spend as much money as they want to elect or defeat candidates in political campaigns at all levels. The decision reversed numerous Supreme Court precedents and toppled dozens of long-standing campaign finance laws at the federal and state level, clearing the field to permanently remake America’s popular democracy into something like a “corporate democracy.”
Americans across the spectrum have been startled and appalled by the Citizens United decision, which will “open the floodgates for special interests—including foreign companies—to spend without limit in our elections,” as President Obama said in his 2010 State of the Union Address. According to a Washington Post nationwide poll, more than 80% of the American people reject the Court’s conclusion that a business corporation is a member of the political community entitled to the same free speech rights as citizens.3
Yet, the Court’s watershed ruling is the logical expression of an activist pro-corporatist jurisprudence that has been bubbling up for many decades on the Court but has gained tremendous momentum over the last generation. Since the Rehnquist Court, there have been at least five justices—and sometimes more—who tilt hard to the right when it comes to a direct showdown between corporate power and the public interest. During the Roberts Court, this trend has continued and intensified. Although there is still some fluidity among the players, it is reasonable to think of a reliable “corporate bloc” as having emerged on the Court.
At the time of the 2000 presidential election, the late economist John Kenneth Galbraith likened the Rehnquist Court’s imposition of its will on the American people to a corporate Board of Directors choosing a new CEO for a mass of passive shareholders. Whereas Article II of the real Constitution provides that the president shall name Supreme Court justices with the advice and consent of the Senate, Galbraith saw that the unwritten bylaws of our country now apparently authorized the Supreme Court to name the president.
His comment, spoken half in jest, was not only a lucid predictive reading of what public policy would be like in the Bush-Cheney period, but a haunting insight about how the rule of law itself has been redefined by the Court majority’s commitment to amplifying the corporate voice, reducing corporate liability, and expanding corporate power.
For more than a century, of course, the private business corporation has been a major force in our economy and society. Because corporations are chartered by the states and interact continuously with government regulators, employees in the workplace, consumers and investors in the marketplace, and our land, air and water, they are frequently in court. When they go to the Supreme Court as parties, sometimes they win, as surely they should, and sometimes they lose, which is also to be expected.
What is striking today, however, is how often the Roberts Court, like its predecessor the Rehnquist Court, hands down counter-intuitive 5-4 victories to corporations by ignoring clear precedents, twisting statutory language and distorting legislative intent. From labor and workplace law to environmental law, from consumer regulation to tort law and the all-important election law, the conservative-tilting Court has reached out to enshrine and elevate the power of business corporations –what some people have begun to call “corporate Americans”–over the rights of the old-fashioned human beings called citizens.
With Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, Clarence Thomas and Anthony Kennedy in the driver’s seat today, the “least dangerous” branch of government now routinely runs over our laws and our politics to clear the road for corporate interests. When it comes to political democracy and social progress, the Supreme Court today is the most dangerous branch. The road back to strong democracy requires sustained attention to how the Court is thwarting justice and the rule of law in service of corporate litigants.
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