The Volokh Conspiracy

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Supreme Court

Testifying on "What's Wrong with the Supreme Court: The Big Money Assault on Our Judiciary"

Presenting an alternative view as a minority witness before the Senate Judiciary Committee.


Tomorrow I will be testifying before the Senate Judiciary Committee's  Subcommittee on Federal Courts, Oversight, Agency Action and Federal Rights. The hearing, called by subcommittee chair Senator Sheldon Whitehouse will address the question "What's Wrong with the Supreme Court?" and posit the answer: "Big money." As readers might expect, I will be offering a contrary view.

The majority witnesses—Harvard law professor Michael Klarman, Lisa Graves of the Center for Media and Democracy, and Ben Jealous of People for the American Way—will paint a picture of an out-of-control, activist Supreme Court beholden to big business and moneyed interests. This report on "Captured Courts" from the Democratic Policy & Communications Committee will give you an idea, as will this white paper Senator Whitehouse wrote for the American Constitution Society.

I am one of two witnesses called by the minority. The other will be Scott Walter of the Capital Research Center. My testimony focuses on the substance of the Roberts Court's decisions. Walter's testimony will highlight the progressive "dark money" deployed to influence judicial nominations and decisions.

My testimony seeks to make three points with which regular readers of this blog should be familiar.  First, the pattern of the Roberts Court's decisions are inconsistent with the hypothesis that the justices are in sway or unduly solicitous to business interests.Among other things, this hypothesis cannot explain why the Court rules in favor of business groups in some cases but not in others, nor can it account for why the pattern of business victories does not correlate with the stakes in individual cases. The Court may decide in favor of the outcome favored by the Chamber of Commerce or other business groups more often than not, but the Roberts Court has ruled against business groups in some of the most important and significant business cases it has heard, such as Massachusetts v. EPA, Wyeth v. Levine, and Chamber of Commerce v. Whiting.

If fealty to corporate interests or big money does not explain the pattern of the Court's decisions, what does? The justices particular doctrinal and jurisprudential commitments. This explains why the conservative justices, in particular, rule against innovative theories advanced by entrepreneurial plaintiffs' lawyers, but do not embrace the business community's call for broad federal preemption. The justices interest in statutory text and precedent further explains why employment law cases, among others, have been a decidedly mixed bag for business groups. And the justices individual judicial philosophies explain why, for instance, Justice Kavanaugh joined the liberal justices in a major antitrust case, and Justice Kavanaugh and the Chief Justice embraced a broad interpretation of the Clean Water Act in County of Maui v. Hawaii Wildlife Federation.

Another point I make in my testimony is that, by standard measures, the Roberts Court (thus far) has been the least activist Supreme Court of the post-war period. The Court holds federal laws unconstitutional and overturns its own prior precedents at a significantly lower rate than the did the Warren Court, Burger Court and Rehnquist Courts. In other words, the Roberts Court is, more than anything else, a status quo court, at least in comparison to its predecessors. Further, when the Court does strike down federal laws or overturn prior precedents, it does not do so in a uniformly conservative direction, as cases such as Windsor (invalidating DOMA) and Obergefell (overturning Baker v. Nelson) illustrate.

Finally, my testimony will observe that insofar as Senators are concerned about "dark money" and efforts by outside groups to influence the Supreme Court, they misdiagnose the problem. Outside economic and political interest groups are willing to invest so much in trying to influence the composition, orientation, and actions of the federal judiciary because so much is at stake. The only way to reverse this trend is to make the Court's less important. Put another way, so long as major policy questions are resolved, on a national level, in the federal courts, interest groups will act accordingly.

Insofar as it is a status quo court, reluctant to overturn prior precedents or to invalidate federal laws on constitutional grounds, the Roberts Court is actually helping to lower the stakes. The Court's shrinking docket, whatever its other faults, further serves to make the Court's composition and orientation less significant. Congress's failure to legislate with greater frequency and particularity, on the other hand, leaves more in the hands of the courts, as does the executive branch's propensity to go it alone on major policy initiatives.

I end my testimony noting my support for greater Court transparency, and encouraging the Court to make itself more accessible to the American public. I suspect most such reforms will need to come from the Court itself, however, as I am not sure how far much Congress can impose such reforms unilaterally.

The hearing is at 3pm Wednesday, and should be available at this link.