Another Supreme Court Corporatist Would Be A Disaster
Supreme Court Justice Stephen Breyer (AP Photo/Steven Senne)
A Breyer clone would help Big Business own the court for another generation.
by DAVID SIROTA
Though most of the Supreme Court discourse revolves around hot-button social issues, the high court is first and foremost big business’s cannon aimed squarely at the American worker and at the livable ecosystem that supports human life. The upcoming battle over Justice Stephen Breyer’s replacement will only be an opportunity to start fixing this emergency if the nomination discourse, advocacy, and decision making acknowledges that this is the big judicial problem — one that has helped turn America’s economy into a corporate dystopia.
On one level, Breyer reportedly retiring is welcome news because it provides a rare opportunity for lawmakers other than Republicans to put someone on the court who doesn’t resemble a villain from The Handmaid's Tale. But with corporate America’s stranglehold on policy — from health care to labor to climate — it’s not enough to merely get an appointee who checks some important demographic boxes and isn’t a religious zealot.
With so much of the court’s day-to-day work focused on corporate cases rather than on social policy, the moment calls not merely for some younger version of Breyer, who has pretended the court is not inherently rigged in favor of corporate power — even though it quite obviously is.
Instead, this moment begs for a jurist whose life experience and record shows a commitment to prioritizing American workers and the environment — and breaking with the most powerful lobbying group in America: The U.S. Chamber of Commerce.
The Chamber’s Court
Sixteen years ago, the Chamber launched its campaign to own the Supreme Court with a bang: It got its own former lawyer, John Roberts, a seat on the panel during confirmation hearings that predictably focused on social issues and largely ignored the nominee’s record as “the go-to lawyer for the business community.”
Since then, the Chamber and conservative dark money groups have placed several Roberts clones on the court, and the putatively liberal minority has routinely acquiesced to the Chamber’s demands. Save for an occasional anomaly, the Roberts Court has typically delivered rulings that favor capital over labor, retirees, the environment and any other priority seen as an obstacle to private profit.
Data from the Constitutional Accountability Center (CAC) tell the story of a seismic transformation in American jurisprudence: Whereas Chief Justice Warren Burger’s court sided with Chamber amicus briefs just 43 percent of the time, the Roberts Court has sided with the Chamber 70 percent of the time — including 83 percent of the time in the most recent session.
In other words, over the course of two generations, the high court went from roughly split on decisions about capital and labor to firmly on the side of capital.
Importantly, this transformation happened with the help of Breyer, a Clinton appointee billed as a liberal holdout even though he often is a conservative accomplice. Again, CAC data tells that story: Breyer has voted with the Chamber position a majority of the time.
In practice, that has meant Breyer recently voting to restrict regulators’ power to punish Wall Street criminals, to empower fossil fuel companies to brush off environmental concerns, and to oppose a state mining ban. It means Breyer voting to shield companies from liability when they face allegations of human rights abuses abroad. It means Breyer voting to limit consumer debt protections. And as the progressive legal publication Balls and Strikes notes, Breyer’s 27-year career of rulings have “protected big business privilege from antitrust lawsuits.”