God Save This Honorable Court!

by dday

The Washington Post has an article today about the implications of a McCain victory on the federal judiciary. I don't think they needed to write it, they could have just used the same amount of column inches and printed this graphic:

(h/t CAF for the graphic.)

The federal bench has been overwhelmingly appointed by Republicans because they've held the White House for 20 of the last 28 years. And while there are exceptions, Republican Presidents have used the Federalist Society and conservative legal organizations as a judge factory. Everyone knows this and it's very clear. However, I don't think one truly appreciates the shift to the right of the judiciary on one of the signature issues they end up deciding in bulk - corporate issues. The lead editorial in today's LA Times is about the "return to consensus" on the Roberts Court, despite the high-profile 5-4 decisions. That's true, but it's a function of what cases the Court is selecting to decide. It has nothing to do with, as the LAT suggests, some sort of judicial comity or bipartisanship. It's because forty percent of the cases this term involved business interests, and the Republican - actually, all - appointees on the Court are of one mind on them.

Though the current Supreme Court has a well-earned reputation for divisiveness, it has been surprisingly united in cases affecting business interests. Of the 30 business cases last term, 22 were decided unanimously, or with only one or two dissenting votes. Conrad said she was especially pleased that several of the most important decisions were written by liberal justices, speaking for liberal and conservative colleagues alike. In opinions last term, Ruth Bader Ginsburg, Stephen Breyer and David Souter each went out of his or her way to question the use of lawsuits to challenge corporate wrongdoing — a strategy championed by progressive groups like Public Citizen but routinely denounced by conservatives as “regulation by litigation.” Conrad reeled off some of her favorite moments: “Justice Ginsburg talked about how ‘private-securities fraud actions, if not adequately contained, can be employed abusively.’ Justice Breyer had a wonderful quote about how Congress was trying to ‘weed out unmeritorious securities lawsuits.’ Justice Souter talked about how the threat of litigation ‘will push cost-conscious defendants to settle.’ ” [...]

Business cases at the Supreme Court typically receive less attention than cases concerning issues like affirmative action, abortion or the death penalty. The disputes tend to be harder to follow: the legal arguments are more technical, the underlying stories less emotional. But these cases — which include shareholder suits, antitrust challenges to corporate mergers, patent disputes and efforts to reduce punitive-damage awards and prevent product-liability suits — are no less important. 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. In the current Supreme Court term, the justices have already blocked a liability suit against Medtronic, the manufacturer of a heart catheter, and rejected a type of shareholder suit that includes a claim against Enron. In the coming months, the court will decide whether to reduce the largest punitive-damage award in American history, which resulted from the Exxon Valdez oil spill in 1989.

And they did reduce that punitive-damage award, as we know. David Souter, one of the court's "liberals," wrote the opinion.

The hot-button issues of gun rights and Roe get all the ink, but ex-corporate lawyer John Roberts has really revolutionized the nation's highest Court, and on issues with business interests at the forefront he have shown himself and his Court extremely willing to ignore precedent and to act in an activist fashion. This is the real agenda of any Republican nominee - you have to look past the so-called "litmus tests" to get to the meat.

As for Sen. Obama's opinion on these issues, he's (surprise, surprise) kept it pretty close to the vest. But we can look to why he opposed both Roberts and Alito:

Obama, like Clinton, voted against both Bush nominees to the Supreme Court, citing their tendencies to favor government and corporate interests—"bullies" in Obama's words—over the rights of individuals.

He wrote, "The bottom line is this: I will be voting against John Roberts's nomination. I do so with considerable reticence. I hope that I am wrong. I hope … that Judge Roberts will show himself to not only be an outstanding legal thinker but also someone who upholds the Court's historic role as a check on the majoritarian impulses of the executive branch and the legislative branch. I hope that he will recognize who the weak are and who the strong are in our society."

Casting his vote against Alito, Obama noted similar concerns about the nominee's voting record, "The Judicial Branch of our government is a place where any American citizen can stand equal before the eyes of the law. Yet, in examining Judge Alito's many decisions, I have seen extraordinarily consistent support for the powerful against the powerless, for the employer against the employee, for the President against the Congress and the Judiciary, and for an overreaching federal government against individual rights and liberties."

In his votes against Roberts and Alito, Obama shared much of the same reasoning with Clinton, noting that the nominees' steadfast support for government and corporate powers—and disinterest in the rights of individuals—concerned him. One point he emphasizes more than Clinton, however, is Roberts's and Alito's tendency to favor the "unitary executive" theory, which supports fewer limitations on presidential authority.

We know that McCain would appoint a corporate whore. I think past precedent suggests otherwise for Obama - and certainly 4-8 more years of Federalist Society knockoffs throughout the judiciary is unacceptable. But the Supreme Court's ideology on corporate issues is pretty rigidly set for perhaps the next generation, and barring a massive change in personnel I don't see that changing. Building progressive power outside of government that will hit businesses in the wallet and hold them accountable to their customers - BuyBlue.org and the stock sell-off of Sinclair Broadcasting in 2004 being some recent examples - may be more effective than relying on John Roberts and his cadre.