Chief Justice of the United States, John G. Roberts Jr., addresses the 2010 Judicial Conference of the District of Columbia Circuit at the Nemacolin Woodlands Resort in Farmington, Pennsylvania. (AP Photo/Keith Srakocic)
When we speak of the Roberts Court as a “corporate court,” we mean a court in which big business has a heavy thumb on the scale and the ordinary citizen finds it harder and harder to get a fair hearing.
Fair or not, the Roberts Court helped bring that descriptor upon itself in 2010 with its landmark ruling in Citizens United v. Federal Election Commission, in which it found that corporations have a First Amendment right to spend unlimited amounts of money from their general treasuries on election ads [see Jamie Raskin, “Citizens United and the Corporate Court”]. It wasn’t just a tiny tweak to First Amendment law, although the five justices in the majority doubtless saw it as such. With the doctrinal reification of “corporate personhood”—seemingly placing it above human personhood—the Roberts Court established a political metaphor that would keep on giving to progressives throughout the Occupy Wall Street effort, the Wisconsin recall election and on into the presidential race.
But how does one measure the ways big business is faring at the Roberts Court, and whether it’s happening at the expense of ordinary citizens? We can start with a study in late June by the Constitutional Accountability Center showing that the US Chamber of Commerce, the powerhouse business lobbying group, had seven straight wins this past term at the Court—a vastly better record than it had during other recent periods of stability in the Court’s membership. When Lewis Powell wrote his famous 1971 memorandum urging the Chamber to press its agenda in the courts, in academia and in the media to give the business community a larger and more unified voice in the legal system and society at large, he could hardly have dreamed of the gains made by the Chamber and other pro-corporate entities in the decades since [see William Yeomans, “How the Right Packed the Court”].
Another measure of the Supreme Court’s favoritism for corporations over ordinary people lies in the ways it has eroded access to the courts for ordinary litigants in recent years. It’s worth recalling that the courts exist as the one branch of government intended to be immune from the kind of concentrated and wealthy influence contemplated by the Powell memo. The judicial branch was conceived as the one above-the-fray realm where ordinary people—those without lobbyists, Super PACS or position papers—might still find a fair hearing when they were wronged. But one of the central projects of the conservative legal movement in recent decades has been to recalibrate that balance, allowing big business to throw up roadblocks to the courthouse doors and make the courts less and less accessible to the people it has harmed.
No one has written on this subject more eloquently than Erwin Chemerinsky, dean of the University of California’s Irvine School of Law. In his 2010 book, The Conservative Assault on the Constitution, Chemerinsky summarizes the massive set of barriers established by the conservative justices on the current Court: “These include restrictions on who can bring a lawsuit, much greater requirements for factual details in complaints to get into court, the tremendous expansion of sovereign immunity that prevents suits against state governments, a strong preference for arbitration over adjudication before juries, and strict limits on the size of punitive- damage awards.” These technical-sounding doctrinal shifts, taken together, have worked to make it ever more difficult for injured Americans to find their way into a courtroom. As Chemerinsky puts it, “Each and every one of them undermines accountability by strongly favoring defendants, governments, government officials and businesses.” Courts—once the refuge of the little guy—have now become bastions to shelter the powerful instead.