This week, the New York Times reassured liberals that when it comes to the Supreme Court, don’t worry, be happy.
“The arrival of Justice Amy Coney Barrett in October seemed to create a 6-to-3 conservative juggernaut that would transform the Supreme Court,” the paper declared. “Instead, judging by the 39 signed decisions in argued cases so far this term, including two major rulings on Thursday, the right side of the court is badly fractured and its liberal members are having a surprisingly good run.”
The Times published the rosy report about this supposed “good run” in a week that saw the high court effectively legalize American corporations’ profit from child slavery abroad, shield Wall Street firms from securities laws, and limit a key form of union organizing among the nation’s poorest workers.
So far in this term, the court has sided with the U.S. Chamber of Commerce — the major corporate lobby group in Washington — in seven separate cases, and only defied the Chamber in two cases.
This tracks with the current court siding with the Chamber 70 percent of the time overall, according to data compiled by the Constitutional Accountability Center.
The Supreme Court Is A Corporate Star Chamber
The Supreme Court’s transformation into a corporate star chamber is rarely mentioned by an elite media owned by corporations and billionaires — but it is a story The Daily Poster has been reporting on since we launched.
Business-related rulings typically are not framed on a liberal-conservative continuum, and in many cases the bloc of putatively liberal justices are siding with corporations against workers, shareholders, and anyone else in society who is not rich and powerful. Indeed, two of the three aforementioned cases this week were 8-to-1 rulings.
Even the Times admitted that “the court’s three Democratic appointees have voted with the majority 73 percent of the time in divided cases” — although the paper casts this as proof of jurisprudential moderation rather than a reflection of corporate capture or bipartisan conservatism.
A good example of this bait-and-switch — and of how the analysis of corporate influence is written out of most legal coverage these days — was the media portrayal of the recent Affordable Care Act (ACA) ruling as alleged proof that the current Court is moderate.
That ruling, which let the ACA stand, was certainly better than the alternative. But the decision was also a win for corporate power, in that it preserved a law that fortifies and subsidizes the private insurance industry.
An Emblematic Ruling Illustrates The Long Con
When Chief Justice John Roberts was appointed to the Supreme Court almost two decades ago, he was billed as the “go-to lawyer for the business community.” His appointment was enthusiastically endorsed by the Chamber of Commerce, an organization he had represented as a corporate attorney.
Since then, Roberts, his fellow conservative justices, and business interests have been playing a long game to try to shield corporations from accountability — and one of this week’s rulings illustrates how that game has unfolded.
Thirty years ago, casino magnate Donald Trump helped create a dangerous legal precedent that made it far harder for investors to sue Wall Street firms when those firms use fine print to mislead them with rosy financial projections and promises. In that case — which revolved around assurances that Trump’s company made to investors before they lost their money — Trump secured a landmark ruling from future Supreme Court Justice Samuel Alito.
Two decades later, Goldman Sachs was telling clients in investment documents that it has “extensive procedures and controls that are designed to identify and address conflicts of interest.” But then the firm was exposed for betting against the mortgage investments it was selling its clients. During a congressional hearing on the topic, Sen. Carl Levin (D-Mich.) grilled a top Goldman executive about the fact that he had pushed investments on clients that he had referred to in an email to a colleague as a “shitty deal.”
Goldman investors led by Arkansas’ teachers pension fund sued — and this week, the Supreme Court effectively solidified the original Trump doctrine. In an opinion written by Justice Barrett, the high court tossed out the class action lawsuit that aimed to hold Goldman accountable.
“The plaintiffs said that when they bought Goldman shares they relied upon the bank's statements about its ethical principles and internal controls against conflicts of interest, and its pledge that its ‘clients' interests always come first,’” Reuters reported. “Goldman argued that these ‘aspirational’ statements were too vague and general to have had any impact on the stock price.”
The Supreme Court agreed to send the case back to a lower court — delivering a huge victory to Goldman and Wall Street firms aiming to limit their exposure to shareholder lawsuits.
The ruling was the latest in a series of decisions that don’t merely side with the Chamber of Commerce, but that deny basic standing to plaintiffs that bring cases against big companies. Rather than rule on the issues at hand, the high court has often either ruled that cases cannot move forward, or that lower courts must impose higher thresholds on plaintiffs that seek redress from big companies.
As the Constitutional Accountability Center put it: “Chief Justice Roberts’s legacy when it comes to access-to-courts issues will be one of closing the courthouse doors as much as possible.”
In this long game, the objective is to foreclose on even the possibility of justice. After all, once the courthouse doors are nailed shut, courts throughout the judicial system won’t even have to decide whether to side with corporate interests — because they won’t even have to hear the complaints brought by workers, shareholders, and anyone else who doesn’t have political power.
Photo credit: AP Photo/J. Scott Applewhite
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