The Business of the Court

Liberals say the Supreme Court has a pro-corporate bias. Are they right?

Does the Supreme Court have a pro-corporate bias? Many liberals would like you to think so. “The Corporate Court has displayed a clear pattern of overreach and ideological bias,” claims Nan Aron of the Alliance for Justice. Chief Justice John Roberts has inaugurated “a clear trend in which big business always prevails,” writes Dahlia Lithwick in Slate. “During the first years of the Roberts court, it has consistently ruled in favor of corporate power,” argues UC Irvine’s Erwin Chemerinsky. “The pattern of pro-corporate decisions made by this Court is unmistakable,” asserts People for the America Way’s Michael Keegan. “Americans who care about our Constitution and our democracy should be deeply disturbed by this trend."

Scary words, to be sure. Thankfully, the reality isn’t so shocking.

In cases ranging from Massachusetts v. Environmental Protection Agency (2007), where the Court recognized a sweeping new federal power to regulate carbon dioxide, to Wyeth v. Levine (2009), where the Court permitted a major state lawsuit against a drug warning label that had previously been approved by the Federal Drug Administration, the allegedly pro-business Supreme Court has repeatedly made big business very unhappy.

Just last month, the Court handed down a unanimous ruling in Williamson v. Mazda Motor of America, Inc., holding that the federal Motor Vehicle Safety Act does not trump a much more restrictive car safety requirement enacted at the state level. This means that although Mazda had followed federal auto safety law to the letter, the company is still susceptible to costly lawsuits filed at the state level. That decision even prompted Elizabeth Wydra, chief counsel for the left-wing Constitutional Accountability Center, to celebrate conservative Justice Clarence Thomas as a “surprising ally for progressives” thanks to the concurring opinion Thomas filed in the case. So much for a pro-corporate pattern.

To further complicate the simplistic tale of a corporate-friendly Court, consider last year’s much-discussed decision in Citizens United v. Federal Election Commission, which struck down several government restrictions on political speech funded by corporations and unions. Citizens United, of course, is now routinely demonized by the left as “the Supreme Court’s gift to big business.” But don’t forget that the American Civil Liberties Union—one of the country’s oldest and most respected champions of unfettered speech—actively supported the winning “corporate” side in the case. So did legendary First Amendment attorney Floyd Abrams, whose resume includes the landmark Pentagon Papers case, New York Times Co. v. United States (1971), where he represented the Times in its First Amendment battle against the Nixon administration. So why shouldn’t Citizens United therefore also count as a pro-ACLU and pro-free speech decision? Or would that spoil the fantasy of selfless progressives battling evil corporate stooges?

The Supreme Court’s forthcoming decision in Chamber of Commerce of the United States v. Whiting is likely to pose a similar conceptual problem. At issue is a controversial new Arizona law that imposes draconian punishments on businesses that hire illegal immigrants. Not surprisingly, the Chamber of Commerce, America’s quintessential pro-business outfit, is spearheading the challenge. Yet the Chamber’s allies in the fight include such liberal stalwarts as the National Immigrant Justice Center, the Service Employees International Union (SEIU), the Southern Poverty Law Center, and the National Council of La Raza. Suppose the Chamber wins. Would it be a pro-business decision? Pro-immigrant? Pro-SEIU? All of the above?

As for the Court’s “pro-corporate” conservatives, last December’s oral arguments in Whiting suggest that Chief Justice Roberts, Justice Antonin Scalia, and Justice Samuel Alito will reject the Chamber of Commerce’s arguments and vote to uphold the state’s anti-immigration law on federalism grounds. (Justice Thomas is also likely to side with Arizona, though he maintained his usual silence during oral arguments.) Once again, a major business case that doesn’t fit any simplistic narrative.

The reality is that the Supreme Court reaches its decisions through a complicated and frequently shifting mix of the justices’ judicial philosophies, political ideologies, and personal quirks. To suggest otherwise might be a good way to score cheap political points, but it’s a preposterous and ultimately useless way to understand what’s actually going on at the Court.

Damon W. Root is an associate editor at Reason magazine. This column first appeared at Reason.com.

Damon W. Root is Senior Editor





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