Yet the article by Jeffrey Rosen was hardly surprising. Law schools inculcate conservatism. Lawyers, judges and law professors are overwhelmingly conservative. They have been swept into the Big Business orbit and the mania for rampant capitalism.
Exceptions prove the rule. Justices Brandeis, Holmes, Black, Douglas and Brennan have been certified liberals. Brandeis was a people’s justice but naturally conservatives complained that he was a socialist and hence un-American. Douglas was such an economic populist that he was “ready to bend the law in favor of the environment and against the corporations.”
But the vast majority of the 111 justices in history have been conservative. They have put property over people. That’s why the late, lamented Warren Court was the best court ever. It put people over property.
Even the social liberals on today’s Roberts Court are conservatives in business cases. They doubt the validity of lawsuits challenging corporate wrong-doing, what conservatives call “regulation by litigation.”
These court rulings, as Jim Hightower phrased it in his Lowdown newsletter, allow “owners to reap all the profits of corporate activity while they are protected from any responsibility for corporate illegalities.”
In the 2006-2007 term the U.S. Chamber of Commerce, powerful lobbying force for business, filed briefs in 15 cases. It won 13. Of 30 business cases decided last term, 22 were decided unanimously or with only one or two dissents.
Business cases, in which the arguments are often abstruse, get little attention as opposed to enflaming issues like abortion, the death penalty and affirmative action.
But as Rosen notes of business cases: “They involve billions of dollars, have huge consequences for the economy and can have a greater effect on people’s daily lives than the often symbolic battles of the culture wars.”
Already this term the Roberts Court has ruled, 8-1, that makers of medical devices like heart defibrillators and implants cannot be sued for personal injuries if the FDA approved the devices.
A New York Times editorial noted that the decision written by Justice Scalia showed far too much faith in the FDA. “The supposedly expert and rigorous reviewers at the FDA are hardly infallible,” the editorial said. It cited many reports of “serious defects in the agency’s management and scientific capabilities.”
The decision lends support to the Rosen thesis. It also underscores the success of regulatory agencies in the Bush administration to protect corporations at the expense of aggrieved citizens.
But how could it be otherwise? Chief Justice Roberts once argued cases for the Chamber of Commerce. He was described glowingly as the “go-to lawyer for the business community.” (Forty years earlier Justice Lewis Powell had been a corporate lawyer.)
Two other court decisions this term show pro-business bias. In one, the court refused to allow a shareholder suit against suppliers of Charter Communications. In the second, the court refused to hear an appeal in which investors are trying to recover $40 billion from Wall Street banks that aided the Enron fraud.
It has always been thus.
Thomas Cooley, a Michigan judge and law professor, was highly influential in the 1860s with his “Treatise on Constitutional Limits.” He argued that “legislative enactment is not necessarily the law of the land” and that state laws to curb business excesses were interfering with liberty and property.
In 1894 President Cleveland sent federal troops to bust the Pullman Car railway strike, wrecking the union. Strike leader Eugene Debs was arrested on a charge of contempt. Thousands of strikers were blacklisted.
Thus, Social Darwinism reigned in the 1880s and 1890s with judges striking down hundreds of state laws. The reign continued into the 20th century. In 1905 the court killed a law limiting the working day of bakers to 10 hours, provoking a stinging dissent from Holmes that the Fourteenth Amendment (due process) does not enact Herbert Spencer’s reactionary policies.
After the court ruled in 1918 that a law barring child labor was unconstitutional, socialist Debs denounced the decision as allowing the “junkers of Wall Street” to “grind the flesh and blood and bones of puny little children into profits.” And Holmes excoriated the majority for intruding its personal judgments into “questions of policy and morals.”
In business matters the elite justices triumph over the will of a vast majority of Americans. They are economic royalists backing the evils of capitalism.
Jake Highton teaches journalism at the University of Nevada, Reno.