Corporations

The Business of the Court

Liberals say the Supreme Court has a pro-corporate bias. Are they right?

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Does the Supreme Court have a pro-corporate bias? Many liberals would like you to think so. "The Corporate Court has displayed a clear pattern of overreach and ideological bias," claims Nan Aron of the Alliance for Justice. Chief Justice John Roberts has inaugurated "a clear trend in which big business always prevails," writes Dahlia Lithwick in Slate. "During the first years of the Roberts court, it has consistently ruled in favor of corporate power," argues UC Irvine's Erwin Chemerinsky. "The pattern of pro-corporate decisions made by this Court is unmistakable," asserts People for the America Way's Michael Keegan. "Americans who care about our Constitution and our democracy should be deeply disturbed by this trend."

Scary words, to be sure. Thankfully, the reality isn't so shocking.

In cases ranging from Massachusetts v. Environmental Protection Agency (2007), where the Court recognized a sweeping new federal power to regulate carbon dioxide, to Wyeth v. Levine (2009), where the Court permitted a major state lawsuit against a drug warning label that had previously been approved by the Federal Drug Administration, the allegedly pro-business Supreme Court has repeatedly made big business very unhappy.

Just last month, the Court handed down a unanimous ruling in Williamson v. Mazda Motor of America, Inc., holding that the federal Motor Vehicle Safety Act does not trump a much more restrictive car safety requirement enacted at the state level. This means that although Mazda had followed federal auto safety law to the letter, the company is still susceptible to costly lawsuits filed at the state level. That decision even prompted Elizabeth Wydra, chief counsel for the left-wing Constitutional Accountability Center, to celebrate conservative Justice Clarence Thomas as a "surprising ally for progressives" thanks to the concurring opinion Thomas filed in the case. So much for a pro-corporate pattern.

To further complicate the simplistic tale of a corporate-friendly Court, consider last year's much-discussed decision in Citizens United v. Federal Election Commission, which struck down several government restrictions on political speech funded by corporations and unions. Citizens United, of course, is now routinely demonized by the left as "the Supreme Court's gift to big business." But don't forget that the American Civil Liberties Union—one of the country's oldest and most respected champions of unfettered speech—actively supported the winning "corporate" side in the case. So did legendary First Amendment attorney Floyd Abrams, whose resume includes the landmark Pentagon Papers case, New York Times Co. v. United States (1971), where he represented the Times in its First Amendment battle against the Nixon administration. So why shouldn't Citizens United therefore also count as a pro-ACLU and pro-free speech decision? Or would that spoil the fantasy of selfless progressives battling evil corporate stooges?

The Supreme Court's forthcoming decision in Chamber of Commerce of the United States v. Whiting is likely to pose a similar conceptual problem. At issue is a controversial new Arizona law that imposes draconian punishments on businesses that hire illegal immigrants. Not surprisingly, the Chamber of Commerce, America's quintessential pro-business outfit, is spearheading the challenge. Yet the Chamber's allies in the fight include such liberal stalwarts as the National Immigrant Justice Center, the Service Employees International Union (SEIU), the Southern Poverty Law Center, and the National Council of La Raza. Suppose the Chamber wins. Would it be a pro-business decision? Pro-immigrant? Pro-SEIU? All of the above?

As for the Court's "pro-corporate" conservatives, last December's oral arguments in Whiting suggest that Chief Justice Roberts, Justice Antonin Scalia, and Justice Samuel Alito will reject the Chamber of Commerce's arguments and vote to uphold the state's anti-immigration law on federalism grounds. (Justice Thomas is also likely to side with Arizona, though he maintained his usual silence during oral arguments.) Once again, a major business case that doesn't fit any simplistic narrative.

The reality is that the Supreme Court reaches its decisions through a complicated and frequently shifting mix of the justices' judicial philosophies, political ideologies, and personal quirks. To suggest otherwise might be a good way to score cheap political points, but it's a preposterous and ultimately useless way to understand what's actually going on at the Court.

Damon W. Root is an associate editor at Reason magazine.

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  2. Liberals say the Supreme Court has a pro-corporate bias. Are they right?

    Oh, shit, Damon – did you wake up this morning and said to yourself “what can I do to attract every anti-eeevil corporashiun nitwit [like Tony] to H&R”?

    1. If there’s another way to greet the day, I don’t know it.

  3. The reality is that the Supreme Court reaches its decisions through a complicated and frequently shifting mix of the justices’ judicial philosophies, political ideologies, and personal quirks.

    Not the conservative justices. Their decisions are clearly dictated to them at the Koch-sponsored events at which they are regularly invited to speak.

  4. At issue is a controversial new Arizona law that imposes draconian punishments on businesses that hire illegal immigrants. Not surprisingly, the Chamber of Commerce, America’s quintessential pro-business outfit, is spearheading the challenge. Yet the Chamber’s allies in the fight include such liberal stalwarts as the National Immigrant Justice Center, the Service Employees International Union (SEIU), the Southern Poverty Law Center, and the National Council of La Raza. Suppose the Chamber wins. Would it be a pro-business decision? Pro-immigrant? Pro-SEIU? All of the above?

    Sockpuppet: Eeeevil Corporashiuns!!!! Eeeeeevil!

    1. You wouldn’t be puppeting my sock if you knew where it has been 😉

  5. So why shouldn’t Citizens United therefore also count as a pro-ACLU and pro-free speech decision? Or would that spoil the fantasy of selfless progressives battling evil corporate stooges?

    Bingo!!!! You won the cigar, Damon.

    Eeeevil Corporashiuns! Eeeevil!

  6. The left is just prepping the battle space for the SCOTUS review of Obamacare, so they can inviegh against SCOTUS ruling in favor of the evil corporashuns/insurance companies.

    1. You mean those nasty companies who are in favor of the part of the law that is being challenged?

      1. Hey, since when does reality enter into ‘teh narrative’? The dems claimed the law was intended to reign in the insurance companies when they were working on passing it.

  7. The only thing the Supreme Court has a bias towards is government power. Not all the time, but generally, and with great effect.

  8. Well, there’s pro-business and there’s pro-business.
    Decisions which make the environment better for anyone who wants to start or run a business are good.
    But something like the recent eminent domain decision (Kelo?) could also be accurately described as pro-business in some sense, but is clearly bad.
    Why do so many people fail to grasp that if you don’t have the right to go about your economic business as you see fit, you really don’t have much in the way of rights at all?

    1. “Why do so many people fail to grasp that if you don’t have the right to go about your economic business as you see fit, you really don’t have much in the way of rights at all?”

      Some don’t care. They are so focused on class envy that they will happily destroy their own freedom if it means screwing the evil rich.

      Some worship government and do not recognize any rights or freedoms unless they are codified into the Federal Register. In their world you start off with no rights or freedoms until they are granted to you by government. The right to conduct your affairs as you see fit doesn’t exist to them. You may only do that which you are allowed to do, and nothing more.

      1. We must know a lot of the same people!

    2. Well, there’s pro-business and there’s pro-business.

      There’s a big difference between free market principles and pro investor policies. It’s a fatal mistake to conflate the two.

    3. Re: Zeb,

      But something like the recent eminent domain decision (Kelo?) could also be accurately described as pro-business in some sense, but is clearly bad.

      Actually, I would argue it is seen INaccurately as “pro-business,” when in fact it’s terrible for business, as it leaves property rights sorely on the whims of government. Maybe a few business leaders don’t see it that way because they know which buttons to press and which gears to grease, but what government giveth, government can take away.

      1. I agree. But in that it works in favor of a particular business in a particular circumstance, I don’t think it is completely inaccurate to label it so.

  9. Liberals say the Supreme Court has a pro-corporate bias. Are they right

    Ironic,

    Since corporatism is the organizing principle for leftists.

  10. Not being anti-business = being pro-business = Christ-fags.

    1. I’ll speak for myself, asshole.

      Corporate personhood (a SCOTUS concept) is fine as long as they are subject to the same individual tax treatment.

      i.e. – a corporations NOL carryforward is limited to $3000 a year instead of the current NO limit.

      Corporations gets free speech (Citizens United)? Fine, then lets have the same tax treatment!

      1. Re: shrike,

        i.e. a corporation[‘]s NOL carryforward is limited to $3000 a year instead of the current NO limit.

        Good thing HR has not read your messages yet…

        … that’s “yet” as in “Bwa ha ha!”

        Corporations gets free speech (Citizens United)? Fine, then lets have the same tax treatment!

        I agree – we should all have the same treatment. I propose we tar and feather the tax man.

        You, shrike, can still send your voluntary checks to the Gov, if you have such personal problems with money. I, instead, love money – I don’t want to part with it.

      2. Corporate personhood is a joke. Corporations exist to pool cash and limit liability — they are a construct of commerce.

      3. Hard to tell which “self” is speaking at any given moment, shrike.

  11. the roberts court rulings you’ve mentioned are not actually anti-business but pro-states-rights. its attitude toward business in general, however, is more positive (not that it shouldn’t be): see the exxon valdez oil spill, Skilling v. United States and http://epstein.law.northwester…..iness.html

  12. The left is just prepping the battle space for the SCOTUS review of Obamacare, so they can inviegh against SCOTUS ruling in favor of the evil corporashuns/insurance companies.

    Since the ObamaCare challenge turns on the mandate that everyone buy insurance from a corporation, wouldn’t the pro-corporate result be upholding ObamaCare?

    1. Exactly, the charge that Obama is a socialist is ridiculous (it was Bush that seized and/or bought corporations for the state) — Obama is more aptly criticized as a crony capitalist.

      1. Re: shrike,

        Exactly, the charge that Obama is a socialist is ridiculous[…]

        Does not matter he had a communist mother, socialist grandparents, a socialist mentor, a socialist “spiritual” counselor, an ex-terrorist and communist book editor… NONE of that stuck on him!

        There are plumages that cross the swamp without staining(*). And, according to shrikey here, Obama’s plumage is like that!

        (*)From a Ruben Dario poem.

        1. None of it stuck.

          Obama is a far greater capitalist than Busho – just ask Warren Buffett.

          (and no – Fat Rush is no authority)

          1. That’s not how I read him. Spread the fucking wealth? Fuck him and all who agree with him.

  13. umm, socialist and crony capitalist often go hand in hand.

    you act as if hypocrisy and contradictions aren’t a staple of politicians.

  14. in fact, what is the difference between crony capitalism and corporate socialism?

    1. Don’t you get it? Obama has not abolished private property and he has not instituted central planning. Therefore he is a total capitalist.

      I’m always amazed by shrike’s ability to construct strawmen.

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