Robed Injustice

Never have I urged impeachment of Supreme Court justices.  I do so now, for the sake of ending the Supreme Court’s corporate-judicial dictatorship that is not accountableunder our system of checks and balance in any other way.

— Ralph Nader1

Lady Justice isn’t blindfolded and her scales aren’t balanced.

Neither is the U.S. Supreme Court (SCOTUS hereafter) a separate or equal branch of the federal government as originally intended. How on earth could it be? It’s not separate because its members are appointed by one of the other branches and confirmed by the third. And as “the court of last resort” it’s not equal in preempting the other two in its verdicts rather than submitting them to the “rule of three” or to a citizen’s tribunal for a final verdict.

Even if SCOTUS were truly an equal partner, it’s ludicrous to think that when its members don their black robes they become impartial judges separated from their own “street-dress” biases formed over the years as members of the propertied and privileged class of society; biases, moreover, known or assumed by and played to in arguments made by well-paid corporate lawyers. SCOTUS, in other words, is anything but a sacred institution or paragon of real justice. It is nothing more than nine very fallible human beings handing down very partial, imbalanced verdicts with eyes wide open.

And, Mr. Nader, while I agree with you, impeachment has no more chance of happening than does a host of judicial reform initiatives succeeding such as implementing a rule of three or replacing SCOTUS with a citizen’s tribunal.

This article reviews some landmark verdicts of injustice favoring Corporate America, recounts the true story of a “tobacco road lawyer” who got to wear the big robe and revived the then moribund corpocracy, and ends by spotlighting verdicts favoring the “perilous” industries.

Chief Justice Morrison Waite’s 1886 “Wink”

Chief Justice John Roberts and his court will forever be remembered as having sealed the deal on selling public office by granting corporations “personhood” in its 2010 verdict (Citizens United v FEC). Bizarrely, this issue had arisen more than 100 years earlier in the High Court and was “settled” without a vote. I call it the Santa Clara Caper. I can’t imagine any member of SCOTUS thereafter not knowing the details of that case.

The Santa Clara Caper

What Roberts accomplished with that verdict Chief Justice Morrison Waite and his court recorder had already done with a wink I think in the landmark 1886 case of the Southern Pacific Railroad Company versus Santa Clara County, California. Railroads, the most powerful corporations of that time, contrived with the help of their lawyers to create and spread the erroneous belief that the 14th Amendment gave corporations the same protective rights as persons, sued the small county that was attempting to impose a special tax on the railroad company, and used that Amendment for its argument. What transpired when the case reached Chief Waite’s Court has become a storied part of judicial folklore and intrigue.

Waite, an advocate of corporate rights, firmly believed the 14th Amendment intended for corporations to be treated as persons, but apparently wanting to avoid setting a precedent did not let that particular issue get formally deliberated at the bench, instead brushing it off by telling the justices in an offhand comment that “The court does not wish to hear argument on the question whether the provision in the 14th Amendment…applies to these corporations. We are all of the opinion that it does.”

What Waite did after the Court adjourned is the intriguing part of the story. Presumably aware of the court recorder’s significant railroad interests, and probably with an encouraging wink, Waite let the recorder decide whether to insert the comment into the record. It got inserted. 2 It amounted to a “High Crime of the Highly Corporatized Highest Court.” SCOTUS has upheld that distinction ever since in favoring corporate over public interests as we shall continue to see.

Legacy of the Tobacco Road Lawyer

Corporate America, which had become unusually moribund around the 1960s, got a wake-up call in 1971 from a most unusual source. Lewis F. Powell was at the time a successful tobacco industry lawyer who specialized in securities laws and who had also been president of the American Bar Association. A staunch advocate of keeping government out of the affairs of business he had become alarmed over what he perceived to be a pervasive assault on the free enterprise system from the gamut of public institutions and the liberal elements of the public itself.  Big business, he fretted, was taking the assault lying down.

So, as Chair of the Education Committee of the U.S. Chamber of Commerce, he wrote a memorandum, eventually dubbed Powell’s “manifesto,” to that organization proposing that it lead a counterattack. 3 Business, he wrote, was “ill-equipped to conduct guerrilla warfare with those who propagandize against the system, seeking insidiously and constantly to sabotage it” and “have shown little stomach for hard-nose contest with their critics.” He went on to lay out what amounted to a “battle plan,” apparently to help business conduct “guerilla warfare.”

He suggested numerous strategies targeting four major American institutions: education, the media, the political arena, and the courts. The strategies were all very aggressive. A few on paper at least seem militant and even paranoid and Orwellian in nature, to wit: It is “a long road and not for the fainthearted.” “There should be no hesitation to attack [those] who openly seek destruction of the system.” There must be “constant surveillance of textbooks” and “monitoring of national television networks.” Does that read like it’s coming right out of some Orwellian pages?

This rabid free-enterprise ideologue and corporate lawyer would become just a few months after firing off his manifesto a justice of the U.S. Supreme Court presided over by Chief Justice Warren Burger. Just think of that, a person like Powell, who was an influential corporate lawyer and sat on numerous corporate boards, taking a seat on the bench of the land’s highest (or is it the lowest?) court. Particularly foreboding and foretelling was the aggressive stance he took in his manifesto toward the courts; to wit: “the judiciary may be the most important instrument for social, economic, and political change.”

Now, SCOTUS is absolutely not the place for social, economic, and political activist justices. It is the place for, if not “robed impartiality,” at least for honesty and transparency. The Senate Judiciary Committee apparently did not know about the manifesto, which was made public after the confirmation hearings were over. Nor did the Committee probe Powell sufficiently. Powell was remiss in not sharing with the Committee either the manifesto or his views expressed in it. Powell acknowledged years later to his biographer that he did not expect to be confirmed because of his close links to business (that was certainly putting it mildly).4

His manifesto has rightly been called a “remarkable document, forming the seminal plan for one of the most successful political counterattacks in American history.” 5  It triggered a tacit conspiracy of new conservative think tanks, conservatively activist legal centers and an awakened, alarmed, and determined corporate America that all worked together to achieve what former journalist Jerry Landay called the “greatest power grab.”

Powell was a perfect example of a former corporate lawyer who, once on the U.S. Supreme Court, continued as a corporatized justice. He significantly influenced the court’s decisions, rolling back the expanding judicial interpretations of federal securities laws. He was a consistent defender of corporations’ constitutional right to free speech. In a 1972 decision, which reversed a Hugo Black decision nearly a quarter of a century earlier, he successfully argued that mall owners could prohibit the free speech of activists distributing flyers on public issues, and then four years later wrote the majority opinion that corporations had the right to speak out on public issues; and in 1980 he again wrote for the majority opinion a “fervent defense” of corporations’ free-speech rights. 6  Corporations owe him an enormous debt of gratitude for that defense, and it surely must have fortified the corporate-sided reasoning behind the January 21, 2010 ruling by the Roberts’ court.

Chief Justice William Rehnquist’s Court Elects a President

And not just any president; it was George W. Bush, the unofficial international war criminal who ordered the bombing and invasion of Iraq. I imagine you know the story, but it is worth recapping very briefly.

Vice President Gore held a large lead in the plural vote over Bush in the 2000 election but the Electoral College outcome, the one that idiotically really matters, was up in the air. Florida was the key to the outcome, but there had been voting irregularities and recounts. The governor of the state was the brother of George Bush and as governor appointed the state secretary who is responsible for matters dealing with the election process in the state. The secretary rushed through a vote count that was still incomplete but gave Bush the lead and certified him as the winner. Gore’s contingency was primed to sue but the Republican Party beat them to the punch by taking the case to SCOTUS, where five conservative, pro-Bush justices prevailed, overturning a Florida Supreme Court ruling and refusing to allow any more recounting of votes. 7 This sordid affair will go down in history as one of the most shameful and unconstitutional verdicts of SCOTUS.

It will also go down as one of the most consequentially deadly verdicts ever. Mr. Gore was quoted as saying “We would not have invaded a country that did not attack us.” 8

Chief Justice John Roberts: “No More Mr. Nice Guy”

John Roberts, 17th and current Chief Justice of the United States, is a multimillionaire and third youngest Chief Justice in the history of SCOTUS. 9 He was nominated by George W. Bush in 2005 and was confirmed by the Senate Judiciary Committee that apparently was fooled by his dissembling claims about what he was and was not. 10

The real Roberts that he had kept veiled (shades of Powell) and then removed once he began presiding over cases was an unabashed friend of Corporate America. 11  A Washington lawyer commented that the “Rehnquist court was really quite a good forum for business—but the Roberts court is even better,” and an executive vice president of the US Chamber of Commerce “declared the Robert’s court as “our (emphasis mine) best Supreme Court ever.” 12  At the close of the first full term of the Robert’s court, the New York Times editorialized that “time and again the court has ruled, almost always 5-4, in favor of corporations and powerful interests while slamming the courthouse door on individuals and ideals that truly need the court’s shelter.”13 Legal journalist Jeffrey Toobin has portrayed Roberts as a “No More Mr. Nice Guy” who “has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.” 14

Mr. Toobin might as well have called Roberts the “Chief Justice for the United Corporations of America.” Roberts sealed that epithet with the January 21, 2010 ruling on Citizens United. The ruling stood both the Constitution and people with common sense on their heads. Five justices, including the Chief, voted for it, four against it.  It was an absolutely preposterous verdict.

It’s absolutely unimaginable that the Framers meant to give corporations Constitutional rights but somehow forgot to do so. They had a vivid memory of the Crown’s oppressive and ruthless corporations, detested them, and avoided mentioning them in the Constitution. As absurd as it seems, trying to uproot corporate personhood would amount to having to expunge the word “corporation” from the Constitution that’s not even in it.

SCOTUS and the Perilous Industries

As preposterous and un-constitutional as the Citizens United verdict is there has been entirely too much hyperbole about its ramifications. They are primarily limited to issues of free speech and corporate influence on elections. The ruling doesn’t affect the choice of SCOTUS justices because they aren’t elected, and only 24 states elect justices to their supreme courts. Seeking to overturn the ruling would be practically impossible to do and would not phase corporate America in any case. Corporations have too many other levers of control over our government.

The ruling is also just the latest in a long string of Constitutional violations the corporatized Court committed in granting corporations other Constitutional rights derived from corporate personhood; namely, the corporation’s right to a) due process, b) be free from unreasonable searches, c) a jury trial in a criminal case, d) compensation for government takings, e) be free of double jeopardy, f) jury trial in a civil case, g) commercial speech, h) political speech, i) dissociate with others’ speech, j) equal protection, and k) compensation for regulatory takings that aren’t available to real people.

And being granted corporate personhood is hardly a perilous verdict. What follows is a selective review of some that are perilous because of their catering to the more perilous industries (the defense and national security industry, the pharmaceutical industry, the agribusiness industry, the energy industry, and the alcohol, tobacco, and firearms industry) and the unending consequences involving the injury to or loss of life or liberty and/or irreparable environmental damage.

SCOTUS Supports U.S. Wars

A class action suit against the Department of Defense was filed on behalf of all U.S. citizens opposing the Vietnam War and petitioning for its cessation. SCOTUS ruled that the petitioners did not have the appropriate standing to sue and ruled against them. 15 The petitioners had a moral standing. SCOTUS had an immoral standing.

SCOTUS Doesn’t Like the CIA Being Embarrassed

Frank Snepp, a Peabody award-winning investigative journalist, joined the CIA in 1968 and agreed not to publish any information about the agency’s activities without first getting its approval. He became the CIA’s chief strategy analyst in Vietnam during the war there, and subsequently wrote a book about it without getting approval. The CIA did not accuse him of revealing any secrets, but claimed he had “damaged the country by creating the appearance of a CIA security melt down.” That is an entirely bogus claim but SCOTUS swallowed it and ordered that Snepp be punished by gagging him for life, be required to submit to agency screeners anything he might write about what he’d learned, and permitted the government to confiscate the profits from his published expose. 16

SCOTUS Supports Military Exercises Over Protection of Marine Species

The Natural Resources Defense Council plus other environmental groups filed an injunction to prevent scheduled Naval training exercises the plaintiffs argued would seriously harm species of marine mammal in the southern California waters. Lower courts upheld the injunction. SCOTUS rejected it, ruling that the public’s security gained from the training exercises outweighed any irreparable harm to marine life. 17 Preparing the Navy for possible military engagements was obviously more important to SCOTUS than protecting a species.

SCOTUS Allows Flesh-Eating Generic Drug Prescriptions

The victim had taken a prescribed generic drug for shoulder pain that ate her flesh, leaving her permanently disfigured over most of her body and nearly blind. These possible side effects had not been put on warning labels by the drug maker.  The victim sued for damages and was awarded $21 million by a lower court. SCOTUS, however, when it had its turn at the victim, overturned the lower court’s verdict and award, holding that all generic drug makers are not liable for side effects or mislabeling and that a drug is safe if FDA, which is a captive of Big Pharma, says it’s safe. 18 The verdict is virtually a free insurance policy for generic drug makers since about 80% of all prescriptions are for generic drugs, leaving millions of Americans at risk.

SCOTUS Allows Vaccines with Dangerous Design Flaws

An infant incurred autism after being routinely vaccinated. The parents sued the vaccine maker. SCOTUS ruled that vaccine makers are liable only for proper manufacturing and labeling and not for the design of the vaccine. 19 This is a senseless verdict. Proper design comes first, followed by manufacturing and labeling.  Want to take a prescribed medication, fly in a plane, drive a car, go over a bridge etc., all with serious design flaws?

SCOTUS Allows Creation of Genetic Monsters

Supreme justice can be more horrifying than fiction. SCOTUS ruled in 1980 that genetically modified organisms (GMOs) can be patented. Ever since, Monsanto and other corporations in the agriculture and food industry have been racing to apply and profit by replacing nature with as many GMOs as they can. These are artificially made living organisms that “damage organs and cause infertility, immune system failures, holes in the GI tract, and multiple system failure when eaten.”

The explosive proliferation of GMOs in the food chain has unleashed a “ticking time bomb” toward “genetic suicide” according to experts who should know. 20  Attribute the origin of this continuing horror story to five members of SCOTUS who didn’t know or didn’t care about the hazardous consequences of their verdict while surely knowing that GMOs would enrich the agriculture and food industry.

SCOTUS Favors Monsanto’s GMO Seeds over Indiana Farmer’s Livelihood

More than 20 years later SCOTUS struck again against nature, ruling that an Indiana farmer had infringed upon Monsanto’s patent for GMO seeds that the company had spent millions of dollars developing. The farmer had bought some seeds from a grain elevator that turned out to have been genetically modified. Andrew Kimbrell, executive director of the Center for Food Safety executive director stated that “The court chose to protect Monsanto over farmers and is contrary to logic and to agronomics, because it improperly attributes seeds’ reproduction to farmers, rather than nature.” 21

SCOTUS Doesn’t Mind Mining’s Environmental Wreckage

To the mining business earth is their resource and dumping ground, but SCOTUS doesn’t seem to mind.  It ruled that the Corps of Engineers had the authority to allow mining waste to be dumped into rivers, streams and other waters. The losers in this case were the plaintiffs (environmental groups), the environment, aqua life, and the health security of human beings living along or using polluted waterways. 22

SCOTUS Lenient on Exxon Mobil for Worst Oil Spill in U.S. History

The allegedly inebriated and known alcoholic pilot of Exxon’s supertanker struck a reef, spilling 11 million gallons of crude oil into the Prince William Sound in Alaska and endangering the marine life and livelihoods of people dependent on the sound’s resources. SCOTUS lowered by 90% what had previously been a $5 billion punitive damages award against Exxon Mobil. 23 The award is nothing more than a slap on the wrist for one of the most profitable corporations in America that is still spilling oil and lying about it. 24

SCOTUS Misunderstands 2nd Amendment, Tolerates Gun Slaughter

“People will die because of this decision. It is a victory only for the gun lobby and America’s fading firearms industry.” 25 That was the comment of the legislative director of the Violence Policy Center following the ruling by SCOTUS in 2010 in which five conservative (naturally) justices held that the right to keep and bear arms is fundamental to the American idea of freedom. The verdict was essentially foretold by a similar SCOTUS verdict in 2008 (District of Columbia v. Heller).

The two SCOTUS verdicts are based on a total misunderstanding of the 2nd Amendment and the context of the new nation at the time the Amendment was written. It reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” The introductory phrase is a pre-condition for the main clause that follows, and thus for much of the history of the U.S. that right has been interpreted as meaning the “collective” right; that is, the collective named “Militia” and not the right of citizens as individuals to keep and bear arms.

That interpretation of a collective right is consistent within the context of the uprising by some dissident citizens of Massachusetts that had occurred just a few years prior to the 2nd Amendment and that had required the raising of a private army, or militia, to defeat the rebels that had attempted to seize a federal armory in that state.

The two SCOTUS verdicts also are in total disregard for the Militia Acts of 1792 that was debated and approved by the same authors of the 2nd Amendment. These Acts, which were used to suppress the Whiskey Rebellion in 1794, clearly did not call forth citizens as individuals but instead provided “for the authority of the President to call out the Militia,” which was obviously the only practical way to quell an insurrection. 26 The Militia Acts were eventually replaced by the Militia Act of 1903, which created the United States National Guard as the new embodiment of an organized militia to deal with domestic violence on a large scale.

One justice of SCOTUS in its second verdict revealed how the nation puts its most crucial issues of justice in the hands and minds of individuals whose knowledge and use of legalese and narrow legal considerations far surpass their intuition and knowledge about the ordinary facts of reality. This justice is quoted as saying that “experts differ on whether private gun possession increases or decreases death and injury.” 27 Intuition alone from an unbiased mind flatly refutes that absurd claim. So do the facts of the matter when examined.

For example, a Harvard School of Public Health comparative study of 26 developed countries showed that “wherever there are more firearms, there are more homicides—exponentially more [in the U.S.]: the American murder rate is roughly 15 times that of other wealthy countries, which have much tougher laws controlling private ownership of guns. 28  No country in the world has more guns per capita [than the U.S.], with some 300 million civilian firearms now in circulation, or nearly one for every adult.” 29

SCOTUS Review Wrap Up

Ten SCOTUS verdicts favoring five perilous industries, the defense and national security industry, the pharmaceutical industry, the agribusiness industry, the energy industry, and the firearms industry have now been reviewed. They spanned 124 years of verdicts and reveal that robed justices, nominated by warriors-in-chiefs in one branch of our government and confirmed by members of a chamber of ill-repute in the second branch and under corporate influence can render stupefying and horrifying verdicts that help to perpetuate human misery and environmental degradation.

Summary

SCOTUS is just one of three branches of a totally broken government, broken in part at the very start by the U.S. Constitution that is fundamentally flawed in its design and needs to be “demythologized” by asking “What kind of government do we want?” 30

In summary, this article started with a retelling of the 1886 verdict by SCOTUS that surreptitiously gave the nod, or wink, to corporate personhood; goes on to retell the legacy of a tobacco road lawyer who was not forthright about his pro-corporate views during confirmation hearings and as a result became a staunch defendant of corporate America during his time on the bench; retells the story of the SCOTUS that elected a president of the U.S.; explains how the current Chief Justice John Roberts came to be called “no more nice guy,” and ends with the review of the ten verdicts.

  1. Nader, R.  Time for Impeachment?  The Corporate Supreme Court, Counterpunch, November 18, 2013 []
  2. My account of the Waite “caper” is drawn mostly from Nace, T. Gangs of America: The Rise of Corporate Power and the Disabling of Democracy. San Francisco: Berrett-Koehler, 2003, pp.  102-109. But see also,  Meyers, W.  The Santa Clara Blues: Corporate Personhood versus Democracy.  The actual court proceedings of the Santa Clara decision is here. []
  3. The full text of the memorandum written by Lewis F. Powell, Jr. on August 28, 1971 to the U.S. Chamber of Commerce is here. All quotations in this chapter of Powell’s message are taken from the full text of his memorandum. []
  4. Jeffries, J. Justice Lewis F. Powell: A Biography. Fordham University Press, 2nd edition, 2001. []
  5. Nace, op cit., p. 138. []
  6. Drutman, L. & Cray, C. The People’s Business: Controlling Corporations and Restoring Democracy, San Francisco: Berrett-Koehler, 2004, p 47-48. []
  7. Zinn, H. A People’s History of the United States. Harper Collins, 1999, p 676-677. []
  8. See here. []
  9. See here. []
  10. Rosenberg, P. Lying In The Confirmation Process & Beyond: John Roberts, Pt. 1-Part 3. July 10, 11, 13, 2013, Crooks and Liars. []
  11. Liptak, A. Corporations Find a Friend in the Supreme Court. The New York Times, May 5, 2013. []
  12. Barnes, R. & Johnson, C. Pro-Business Decision Hews To Pattern of Roberts Court, The Washington Post, June 22, 2007p. D0.1. []
  13. Editorial. Justice Denied. The New York Times Online, July 5, 2007. []
  14. Toobin, J. “No More Mr. Nice Guy: The Supreme Court’s Stealth Hard-liner”, The New Yorker, May 25, 2009p. 42-51, p. 44. []
  15. Schlesinger v. Reservists Committee to Stop the War (No. 72-1188), Legal Information Institute, Cornell University Law School, June 25, 1974 []
  16. Sneep, F.  Snowden and a Muzzled Free Press, Special to CNN, July 3, 2013 []
  17. Legal Information Institute. Winter v. Natural Resource Defense Council Inc. , November 12, 2008 []
  18. MBD. Supreme Court Rules Drug Companies Exempt From Lawsuits. July 8,  2013. []
  19. McCarthy, M. Supreme Court Rules in Favor of Vaccine Manufacturers, National Journal, February, 22, 2013 []
  20. Todhunter, C. Genetic Engineering and the GMO Industry: Corporate Hijacking of Food and Agriculture, Global Research, December 30, 2012. []
  21. Wolf, R. Supreme Court sides with Monsanto in major patent case, USA TODAY, May 13, 2013 []
  22. Kaufman, L. Justices Say Waste Can Be Dumped in Lake. The New York Times, June 22, 2009 []
  23. Liptak, A. Damages Cut Against Exxon in Valdez Case. The New York Times, June 26, 2008 []
  24. Bloom, T. Exxon Lied About Oil Pipeline Rupture, Documents Show. Truthdig, June 3, 2013. []
  25. Biskupic, J. & Johnson, K. Supreme Court ruling tilts law against limits on guns. USA TODAY, June 29, 2010. []
  26. See here. []
  27. Biskupic, J. & Johnson, K., op. cit. []
  28. Editor. In Other Countries, Laws Are Strict and Work. The New York Times, December 17, 2012. See also, Leber, J. The Scientific Case for Outlawing Guns. MIT Technology Review, February 7, 2013. []
  29. Editor, The New York Times, op.cit. []
  30. Wheatcroft-Pardue, K. The Broken Government, Oped News, September 6, 2011. []

Gary Brumback, PhD is a retired psychologist and Fellow of both the American Psychological Association and the Association for Psychological Science. He is the author of The Devil’s Marriage: Break Up the Corpocracy or Leave Democracy in the Lurch. His most recent book is The Corpocracy and the Megaliio Corporation’s Turn Up Strategy. Gary can be reached at: democracypower@bellsouth.net. Read other articles by Gary, or visit Gary's website.