Wayne O'Leary

Corporate America’s Judicial Firewall

In the end, President Obama’s pick to succeed the late Justice Antonin Scalia on the US Supreme Court, Judge Merrick Garland of the DC Court of Appeals, was almost predictable. It was just another instance of Obama being Obama.

By all surface appearances, Judge Garland is highly credentialed and eminently qualified: the right education (Harvard College and Harvard Law); the right experience (law clerk, law partner, federal prosecutor, lower-court judge); the right temperament (cerebral, meticulous, thoughtful). He’s also a nonideological centrist with no known partisan political leanings — exactly the sort of appointment you would expect from this most bipartisan of presidents. And therein lies the problem.

Admittedly, a less pedestrian Obama nomination to the high court could not be confirmed by the Senate as presently constituted, and this one may not fare well either. But Garland is the very model of an Obama judge, someone the president would likely appoint regardless of the circumstances; he’s a career jurist, a technician of the law, and a believer in “judicial restraint,” including deference to prior rulings, however wrongheaded. What he’s not is what President Obama is not: a proponent of judicial activism.

Unlike Scalia, the man he would replace, Garland would not shake things up from the bench. An unremarkable pick, he would be in line with the bland, uncontroversial justices Democratic presidents have chosen for the past two decades: moderate centrists the media insist on calling “liberals,” in order to contrast them with the hard-right conservative jurists Republican presidents have picked over the same period. A New York Times analysis, based on his record, suggests that along the ideological spectrum, Garland would reside midway between the two more marginally progressive of the current court’s centrists, Ginsburg and Sotomayor, and the two more conservative ones, Breyer and Kagan - - about as middle-of-the-road as you can get.

In point of fact, there are no liberals on the Supreme Court in the true sense of the word; the last of that crusading breed departed in 1990-91 with the retirements of William Brennan and Thurgood Marshall. Merrick Garland would not replicate them, nor would he remind anyone of, say, Louis D. Brandeis, William O. Douglas, or even John Paul Stevens, who famously raged against the Citizens United decision on his way out the door. Stevens himself remarked that, during his time on the court (1975-2010), each new justice arriving was more conservative than the one he or she replaced.

No vested interest in America has been happier about this development than the corporate sector. In 2011, two law professors, Lee Epstein and William Landes, along with US Appeals Court Judge Richard A. Posner, revealed the extent of Supreme Court rulings favorable to big business in recent history. From 1953 to 1969 (the liberal Warren Court years), they discovered, just 29% of relevant cases had resulted in pro-business rulings. By the period 1969 to 1986 (the conservative Burger Court era), such rulings had risen to 47% of the total. And by 1986 to 2005 (the hard-right Rehnquist Court period), they had reached 51%.

Since that time, the trend has only accelerated. The Economist magazine, further illuminating the expanded institutional bias, reported in a parallel study that pro-business decisions (that is, those supported by the US Chamber of Commerce) jumped from 56% in 1994-2005 to 68% in 2006-10 under the Roberts Court, topping out in 2009-10, when the side favored by the chamber won 13 of 16 cases.

The Epstein-Landes-Posner analysis noted that among all 35 members of the Supreme Court serving from 1946 to 2011 and ranked according to “friendliness to business,” present Chief Justice John Roberts placed second, with the late Justice Scalia ninth. Remarkably, the study indicates, four of the 10 most pro-corporate justices since 1946 remain on the court, namely Republican appointees Roberts, Alito, Thomas, and Kennedy; Scalia would have made a fifth.

The answer to this one-sided arrangement appears simple. Just ensure a Democratic president selects the justices. Unfortunately, there’s more to consider. James B. Stewart, reporting in the New York Times, inconveniently points out that Justice Stephen G. Breyer, a 1994 Bill Clinton appointee, has evolved into one of the high court’s most business-friendly members. So Democrats elevated to the court have to be the right Democrats, selected by the right Democratic president.

Thus, the Garland dilemma. Do we really need another philosophically undefined and unpredictable centrist jurist, one who may harbor attitudes overly favorable to corporate America and antithetical to the interests of workers, consumers, and the struggling middle class in general? Garland, despite his years on the bench, is something of a blank slate when it comes to the stranglehold corporate interests have had over national jurisprudence for a generation, but one hint is unsettling.

In 2010, in the case SpeechNow.org v. Federal Elections Commission, he joined in a nine-judge circuit-court panel that allowed unlimited political contributions to “super PACs” under the precedent and logic set by Citizens United. Garland’s opinion in this instance may be an anomaly, but it illuminates the risk of putting up a conventional centrist just because he may be confirmable.

The lopsided results of lawsuits involving corporate interests in recent years illustrate the perils attendant upon a Supreme Court that combines right-wing ideologues in pursuit of a Federalist Society agenda with nonideological centrists focused on process, legal niceties, and narrow interpretations of the law — to the point of offering only nominal resistance to the other side. The Roberts Court has, for instance, virtually outlawed class-action suits against corporations, overturned antitrust restrictions, limited liability for corporate fraud, stymied government regulation of business, and, in the Citizens United v. Federal Elections Commission case (2010), affirmed that corporations have essentially the same rights as individuals and can spend unlimited amounts in elections.

Citizens United was decided by a 5-4 conservative-majority vote, but here’s the unpleasant surprise: 80% of pro-corporate decisions brought down by the Roberts Court from 2006 through 2010 were, according to the Constitutional Accountability Center, adjudicated by votes of 7-2 or better, which means four centrist justices were at various times complicit. At the least, this should give pause to enthusiastic Democratic backers of centrist nominee Garland. The danger is that a recalcitrant Republican Senate might reconsider and actually confirm him.

Wayne O’Leary is a writer in Orono, Maine, specializing in political economy. He holds a doctorate in American history and is the author of two prizewinning books.

From The Progressive Populist, May 15, 2016

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