How the Right Packed the Court
The Roberts Court’s embrace of business interests has not been equaled since the early 1930s, when conserva- tive justices—FDR’s “Nine Old Men”—sought to undermine the New Deal. This Court has consistently empowered moneyed interests at the expense of working Americans. This phenomenon is no accident; it is the result of years of dedicated effort by organized corporate interests.
As historian Kim Phillips-Fein writes in her book Invisible Hands, many of the intellectual and institutional antecedents of the modern pro-corporate movement lie in the organized opposition to the New Deal. In assessing the corporate capture of the courts, however, a compelling starting place is the memorandum written in 1971 by Lewis Powell for his friend Eugene Sydnor, an official of the US Chamber of Commerce. At the time, Powell was a corporate lawyer in Richmond, Virginia, representing such interests as tobacco giant Philip Morris, on whose board of directors he served.
Powell’s memo is a return to a time before conservatives had captured our political and legal dialogue. He wrote almost hysterically that “the American economic system is under broad attack” by “Communists, New Leftists and other revolutionaries,” but also by “perfectly respectable elements of society,” including “the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and from politicians.” He singled out William Kunstler, Charles Reich, Herbert Marcuse and, most prominently, Ralph Nader as the leading villains. Powell described an apathetic and ineffective corporate community that lacked the stomach and institutional capacity to fight back. He prescribed a broad response that would be funded by large corporations and coordinated by the Chamber of Commerce, big business’s main Washington lobbyist. The Supreme Court would be the centerpiece of this strategy.
Powell wrote that “with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.” He urged the Chamber to adopt the tactics of the ACLU, civil rights groups, public interest organizations and labor unions in convincing the Court to empower corporations. He advocated the development of a “highly competent staff of lawyers” to represent the interests of business as both party and friend of the Court. Two months after Powell wrote his blueprint for the corporate capture of the Court, President Richard Nixon nominated him to serve on it. He was confirmed before his memo surfaced.
In 1977, the Chamber fulfilled the recommendation of Powell’s memo by launching the National Chamber Litigation Center to represent the interests of business in the Supreme and lower courts. Today, the NCLC ranks second only to the US solicitor general in appearances before the Court. And its success rate before the Roberts Court rivals—and this past term has outstripped—that of the solicitor general.
In fact, the NCLC’s roster of wins before the 2010–11 Supreme Court term reads like a top ten list of the corporate world’s efforts to strangle working Americans and maximize profits. Its victories included thwarting class-action claims of gender discrimination at Walmart; forcing individuals to have their claims against big corporations settled in arbitration rather than gaining access to the courts; beating back litigation by states and municipalities seeking to regulate greenhouse gases; defeating claims for damages caused by the defective design of vaccines; limiting recovery by whistleblowers; restricting the reach of US law over foreign manufacturers of defective products; and blocking suits by private citizens against brokerage firms for making false statements about securities.
The Supreme Court traditionally agrees to hear fewer than 2 percent of the cases it receives for review. In the 2010–11 term, the NCLC urged the Court to review thirty cases, and the Court heard twenty-one of these—a stunning 70 percent success rate for the Chamber. In the most recent term, that percentage fell to a still remarkable 52 percent. And, strikingly, in the eight cases in which the Court reached the merits of the issue briefed by the NCLC, the NCLC won all eight. The solicitor general opposed the NCLC’s position in five of those cases and lost all five. The Court repeatedly chose corporate interests over those of the government.
The NCLC website features the following quote from leading Supreme Court advocate Carter Phillips: “Except for the solicitor general representing the United States, no single entity has more influence on what cases the Supreme Court decides and how it decides them than the National Chamber Litigation Center.” Phillips may have to revise his statement to give the NCLC pre-eminence: since 2006, the NCLC has prevailed 68 percent of the time, according to the Constitutional Accountability Center. This percentage is far higher than in comparable periods of the Rehnquist Court (a 56 percent success rate) and the Burger Court (a 43 percent success rate).
The NCLC’s legal success rests on a carefully laid foundation that produced a Court with a pro-corporate tilt. The contributing factors include the rise of an ideologically driven conservative legal movement, the appointment of radically conservative judges to the bench and the emergence of a highly effective Supreme Court bar serving corporate interests.