The Subprime Court

By now everyone knows the new Supreme Court tilts to the right. Bush’s nominees, Justice Alito and Chief Justice Roberts, lead a conservative five-justice bloc, where reproductive health rights have been cut back and the President’s Office of Faith-Based Initiatives will keep getting very real public money.1 No surprises from the Old Men In Black there.

But what’s less known is the court’s new major function, which is acting as an institution of corporate power. Since Bush’s appointments, the court has begun hearing far more business cases, and in case after case has “pushed the law in a direction favored by business,” as the Wall Street Journal reports.2 For example, the U.S. Chamber of Commerce, America’s most powerful business lobby, took a position on fifteen cases before the court in 2007, and its side won in all but two.3

That makes sense, since Roberts previously represented and filed briefs on behalf of the Chamber and other prominent business organizations like the National Association of Manufacturers and other corporate clients.4 The Financial Times refers to Roberts and Alito as “pretty much the dream candidates of economic conservatism,” calling Justice Roberts himself “a white-shoe corporate lawyer” and noting “Justice Alito often sided with employers in his prior life as a judge.”5

The result is reviewed very well in Business Week, describing the views of Robin Conrad of the Chamber of Commerce’s litigation arm: “The judicial branch offers an alternative forum where business can seek changes it has failed to win from other branches of government. In the 1990s, the chamber and other business groups made this a vital part of their tort reform strategy, pouring money into local judicial campaigns to reshape state supreme courts…[now] the approach is playing out on a national level.”6 But “tort reform”—where barriers are raised to discourage suing companies—is only one part of what business expects from our court, in what will probably be decades of “business friendly” decisions.

Consider banking regulation, which is making a comeback these days with even the Federal Reserve Chair coming out for it. Our highest court recently ruled that national bank subsidiaries that extend mortgage loans, a major part of our current straits, can’t be regulated by state governments.7 Impressive, since mortgages and home equity loans were among the financial assets that were repackaged into forms that ended up bringing down the banks. The subprime legacy doesn’t seem to faze the court.

Additionally, the court ruled almost unanimously that banks, being “regulated” by the Securities and Exchange Commission, cannot be sued by investors—making them “generally immune from antitrust liability” as the International Herald Tribune describes.8 Companies face antitrust liability when they become large and powerful, so this decision looks great in our current environment of banking near-collapses. Because if there’s anything our “too big to fail” banks need, it’s to get even bigger.

The Supremes also decided that citizens have no right to legally challenge the tax breaks used by most of the U.S. states to “lure investment and jobs away from competing localities,” as the Financial Times reports. “Forty-six of the 50 states offer some form of investment tax credit. Big companies, many of them carmakers, get billions of dollars each year from states and cities in what critics call an ‘escalating arms race’ of tax incentives.”9 This is a big deal, since this type of tax concession is how firms drive the “race to the bottom” among states and countries—either you lower my taxes or I’ll build my plant somewhere that does. So for the Roberts Court, if the states want to oversee banks’ shady mortgage-issuing, no dice. But if they’re cutting taxes on Toyota so they’ll condescend to build a plant, no problem.

Business involvement in elections has been a recurring subject for the court. A 2007 ruling overturned a significant part of the McCain-Feingold campaign finance law, finding that corporations, unions, and interest groups can run “issue ads” immediately before elections.10 The intention of the law had been to prevent a pre-election flood of campaign advertising, thinly disguised as advocating for a political issue, paid for by companies and other groups. The law was restricted to the period just prior to elections or primaries, and only to ads which were funded by corporations, unions, or other groups from their own general treasuries—a very limited restriction on how companies could use their massive financial advantages in an election environment.11

The court set a very high standard for these sham “issue ads” to be found in violation of McCain-Feingold. The ads have to expressly urge a position on a candidate, or be subject to “no reasonable interpretation other than as an appeal to vote for or against a specific candidate,” to be found illegal.12 In other words, they won’t be, as described by Richard Hasen, Law Professor at Loyola Law School Los Angeles, in a paper on the court’s new ad-friendly stance. Noting that the “burden of proof is on the government to prove the advertisement is not subject to exemption” and that the decision expressly forbids considering the context of the election in interpreting the ad, he finds that most campaign ads of the issue-oriented variety “will comfortably fall on the permitted side of the line.”13 In fact, “Very few ads broadcast close to an election” directly push for a candidate, but “almost always mention a legislative issue, even if they are also attacking a candidate.” In other words, the 2008 flood of corporate and other campaign ads in battleground states owes a lot to our highest court.

And now, the court seems ready to overturn or seriously restrict even this weakened limitation on corporate campaign influence, as a combative film on Hillary Clinton from the primary season has fallen under the ban. Since the law could extend to any political speech, as long as it advocates a candidate and was paid for with general corporate or group funds, it’s conceivable that books or signs could be banned, if paid for by firms. This has lead to the conservative wing of the court issuing a good deal of weak-sauce posturing as defenders of the First Amendment.14 The poor corporations are being slightly limited in their massive dollar advantage over the unions and other groups, so their political speech rights must be defended. Of course, the court also found that students can be censored and punished by schools for mocking school policy, in the well-known “bong hits 4 Jesus” case.15 If it’s people instead of capital, this court has little salt for free speech.

Another overturned McCain-Feingold provision, the “Millionaire Rule,” raised the ceiling on individual campaign contributions for candidates facing a self-financed opponent, whose vast personal resources tilt the playing field in their favor.16 The court found that this was unfair for imposing more restrictions on one party in an election than another, but this doesn’t address the advantage held by rich candidates who can self-finance. In fact, the Rule itself was a response to a previous Supreme Court ruling overturning restrictions on wealthy candidates using their own cash to gain office. An outside observer might call all this a clear argument for publicly-funded elections.

Turning to elected judges, the Supreme Court ruled “an elected judge may rule on a case where one party spent $3 million to help get him elected,” the Wall Street Journal reports.17 The question was whether this violates the constitutional rights of due process and impartial trials. Notably, conservative Justice Scalia held that due process was not violated because the judge’s conflict of interest was “vague.” 3 million bucks sounds pretty specific to me, but I’m no lawyer.

But I am an economist, and I’ll tell you that you can thank the court for some higher consumer goods prices as well. By 5-4, the Court overturned a 1911 Supreme Court ruling outlawing “minimum-price agreements,” where a manufacturer requires that retailers not mark down the prices of its products. The business press describes the corporate rationale for legalizing this practice: “minimum resale price agreements, although raising prices within brands, could be good for consumers as price competition between brands would be stimulated…the loss of competition on price would be more than made up for by the way a price floor would allow retailers to compete on service rather than on price alone.”18 The Wall Street Journal describes them as “a means to enhance a brand’s image and for retailers to make enough profit on their merchandise to provide better customer service,” but they “have run into legal trouble in the past when federal officials found they resulted in higher prices for consumers.”19

This is essentially what economists call “price fixing,” where firms work together to increase markups on products, and thus the price paid by consumers. In spite of the companies’ argument that the MPAs will encourage price competition between brands, the Journal observes that similar video games Guitar Hero World Tour and Rock Band 2 are being sold at the same mandatory retail price. And not a little one either, $189. The court’s opinion here is that when firms increase prices on us, the extra money will go into improving the product or customer service. Of course, it’s just possible that the higher markups will fatten the manufacturer’s profitability, instead. But at least the firm’s image is enhanced, in that you have to fork over more cash.

But the Roberts Court’s trademark has been its limitation of damages in corporate lawsuits and its moves to prevent firms from being taken to court at all. The court reduced the punitive damage settlement against Exxon for the 1989 Valdez oil spill by 80%, from $2.5 billion to $500 million.20 It also reversed a jury decision against cigarette manufacturer Philip Morris, which awarded $79 million to the widow of an Oregon smoker, on the grounds that the jury might have based that number on a desire to punish the corporation for harming other smokers (juries are silly that way).21 The court now seems eager to further reduce the limited extent to which companies can be held liable through lawsuits for costs they impose on others, or “externalize.”

The press describes the court as “closing the courtroom door,” preventing lawsuits against corporations, very often from the firms’ own investors. The court has found that class action lawsuits alleging fraud must be brought in federal courts, where they’re effectively barred;22 that investors can’t sue Wall Street banks over their losses from the cozy IPO agreements from the 1990s stock mania;7 and they face tighter standards for bringing suit for antitrust conspiracy. This series of decisions greatly reduced corporations’ liability to investor suits, leading Robin Conrad of the U.S. Chamber of Commerce’s legal arm to declare the Roberts Court in 2007 “our best Supreme Court ever.”23

These aren’t ambulance-chaser lawsuits—the Roberts Court is essentially insulating corporations from suits from their owners and customers, when such suits are often the only recourse when firms “externalize” their costs in loose regulatory environments. Closing off that possibility of redress for victims of corporate destruction will save big firms millions and billions of dollars, hence Conrad’s grateful attitude. Interestingly, while many of these business cases have been won by the court’s five-justice conservative bloc, on these issues of limiting court damages the court has been more unanimous—even the other, “liberal” justices would see firms insulated from accountability for their behavior.

But there have been some cracks in the corporate lock on the court. One interesting example is the court’s treatment of employee discrimination cases. Businesses, of course, would like to see these restricted, and in the first such case the court heard, the now-famous Ledbetter case, the court ruled against the plaintiff, Lilly Ledbetter. Ledbetter, a supervisor at a Goodyear plant, learned that her employer had paid every male in a similar position more than her, to the tune of about a thousand bucks more per month. But the court threw out her case since she failed to meet a strict 180-day deadline in filing suit. This tightened statute of limitations meant that very few such cases could be filed. But this became a prominent national issue, after which the court changed its tune. As the press describes, Ledbetter lead to “loud protests…But since then, the court has consistently sided with employees who have alleged discrimination, and ruled…to allow lawsuits to go forward.”24 This suggests that even the august Supreme Court can be made to feel the heat of public opinion, which is encouraging.

Another development suggesting incomplete commercial dominance of the Roberts Court is the recent decision on drug labeling. After having recently found that manufacturers of medical devices are shielded from lawsuits by their government-approved safety labels, the court found drug manufacturers aren’t, and that suits against them could go forward.25 This reversal for corporate power before the court has lead some observers to conclude that the its reputation as a business plaything was premature and that “something of a reevaluation of the court is underway.”3 But it should first be noted that Bush’s conservative appointees in fact dissented from this decision, along with Justice Scalia. So the question is what happened to the other two conservatives, Thomas and Kennedy.

The answer lies in the doctrine of federal “preemption,” where government regulation prevents state lawsuits. Preemption has only recently been extended to drugs from medical devices, mainly in a late policy of the Bush Administration.3 Apparently that took obedience to corporate power too far for a few conservatives, but over the long series of business rulings reviewed here, it’s a drop in the water.

So, if you’re a consumer who believes in punishment for corporate fraud, or just competitive pricing, this court is no great shakes. But if you’re a millionaire running for office, or a stockholder of a oil-spilling corporation, or a multinational firm demanding a tax break before you’ll make a hire, this Supreme Court hands out enough justice to redecorate your whole summer estate. But it’s still heartening that the court seems to have backed off in the face of wide outcry after the Ledbetter decision, which suggests that the aroused public can still exert pressure, even on a firm instrument of capital like the Roberts Court.

Sure, the Supreme Court’s an inherently conservative institution, and always sympathetic to the wealthy and powerful, from whose ranks the Justices have historically been drawn. But the escalation of the number of business cases on the docket suggests that Corporate America has tightened its grip. As the Economist has noted, Bush’s only lasting success in his “domestic legacy” probably lies in “shifting the Supreme Court significantly to the right.”26 And in keeping with the pattern of the Bush Administration, the court’s public approval rating is falling as it lines up with corporate demands on case after case.27

Over the coming decades of corporate dominance of the highest court in the land, it will take a more thoughtful, organized and active version of the response to the Ledbetter case to make the court even approach the desires of American citizens, rather than the wet dreams of the Chamber of Commerce. But that popular organization and education is the only way to drag the Roberts Court, kicking and screaming, into the twentieth century and points beyond.

  1. Wall Street Journal, Partial Reversal, April 19, 2007. Wall Street Journal, Roberts Rules, June 26, 2007. []
  2. Wall Street Journal, Roberts Court Unites on Business, June 30, 2007. []
  3. Washington Post, Court Defies Pro-Business Label, March 8, 2009. [] [] []
  4. Financial Times, Trade Group Backs Supreme Court Nominee, August 11, 2005. []
  5. Financial Times, The Supreme Court Has Been Bad For Business, June 29, 2006. []
  6. Business Week, The Supreme Court: Open For Business, July 9, 2007. []
  7. Washington Post, Pro-Business Decision Hews To Patten of Roberts Court, June 22, 2007. [] []
  8. International Herald Tribune, Analysis: Roberts Supreme Court Is A Conservative’s Dream, July 1, 2007. []
  9. Financial Times, Supreme Court Backs US States’ Tax Breaks, May 16, 2006. []
  10. Wall Street Journal, Roberts Rules, June 26, 2007. []
  11. See for example Center For Responsive Politics, 2008 Overview. []
  12. Wall Street Journal, Justices Loosen Ad Restrictions In Campaign Finance Law, June 6, 2007. []
  13. Hasen, Richard. Beyond Incoherence: The Roberts Court’s Deregulatory Turn in FEC vs. Wisconsin Right to Life, Minnesota Law Review, April 2008. []
  14. Wall Street Journal, Justices Seem Skeptical Of Scope Of Finance Law, March 24, 2009. []
  15. New York Times, Vote Against Banner Shows Divide On Speech In Schools, June 26, 2007. []
  16. New York Times, Supreme Court Strikes Down “Millionaire’s Amendment,” June 27, 2008. []
  17. Wall Street Journal, High Court Split Over Case on Judicial Ethics, March 3, 2009. []
  18. Financial Times, Supreme Court Weighs Up Value Of Price-Fixing Against Discounts, March 27, 2007. []
  19. Wall Street Journal, Why Some Toys Don’t Get Discounted, December 24, 2008. []
  20. International Herald Tribune, Supreme Court Decision On Exxon Valdez Damages A Blow To Alaskans, June 26, 2008. []
  21. Financial Times, Court Narrows US Money Laundering Law, June 3, 2008. []
  22. Financial Times, Supreme Court May Limit Class Action Lawsuits By Investors, January 19, 2006. []
  23. International Herald Tribune, Analysis: Roberts Supreme Court Is A Conservative’s Dream, July 1, 2007. []
  24. Washington Post, Court Defies Pro-Business Label, March 8, 2009. Congress has since changed the law the undermine the Court decision; this will probably not be the only such episode. []
  25. Financial Times, Drugs Groups Fear Rash of Label Litigation, March 5, 2009. []
  26. The Economist, Supreme Success, July 7, 2007. []
  27. Wall Street Journal, Roberts Court United on Business, June 30, 2007. []

Rob Larson is affiliated with the Bar by his house. He'’s an Assistant Professor of Economics at Ivy Tech Community College in Bloomington, Indiana. Read other articles by Robert, or visit Robert's website.

5 comments on this article so far ...

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  1. Don Hawkins said on April 4th, 2009 at 10:21am #

    Again pots and pans.

  2. greybeard said on April 4th, 2009 at 8:52pm #

    The timing is wrong. The Court has been leaning toward business for over a century, perhaps even before the ink was dry on the Constitution. And when corporations acquired standing as “persons” but an illegal immigrant is NOT a person…well, the “fix” is in for all three branches of government. A non-violent revolution of the people MIGHT work–but would require the military to refuse to follow orders to inflict harm on their own people. And men with guns rarely refuse orders from those who pay them. Tragically I think this particular experiment with democracy is failing.

  3. bozh said on April 5th, 2009 at 8:58am #

    greybeard,
    the socalled fathers of constitution and US governance never intended for US to function any differently than the governances anywhere else.
    they continued to do what always worked: governing by feudal or corporate lords.
    in US interpersonal relationship is as it always had been; we still have pyramidical/trapezoid structures of society. tnx

  4. HR said on April 5th, 2009 at 3:10pm #

    Anybody ever hear of impeachment? It applies to these “supreme” judges, too, if I recall correctly. I believe it was Jefferson who proposed limits on judicial terms, such that they would never exceed the length of one human generation. It was a good idea then and is one now. Ten-years terms might be even better.

  5. Russell Olausen said on April 6th, 2009 at 9:57pm #

    N. America was settled by indentured immigrants and it looks like we are the sons of our fathers in the eyes of the court.Plato’s ‘The Republic is still their handbook.Read it. The insights gained will help in avoiding the unpleasant act of being judged by nonpeers.