It’s A Nice Racket

Sheldon Whitehouse has a good piece putting this week’s Wall Street Journal editorial issued by John Roberts into the broader context of the Court’s interminable string of essentially lawless pro-business decisions:

There is an established pattern of bias toward the corporate elite, inconsistent with Roberts’ famous assertion from his confirmation hearing that the justices are just “calling balls and strikes.” In partnership with the American Constitution Society, I just published a review of Chief Justice John Roberts’ tenure through 2018 describing this pattern. Republican appointees have delivered for corporate or conservative interests in 73 partisan, 5–4 decisions during the Roberts era, with big Republican donor interests winning 73 out of 73 decisions. More tellingly, the Roberts Five often trample purportedly conservative judicial principles—respect for states’ rights, textualism, judicial restraint, stare decisis, even originalism—when those principles stand in the way of an outcome they want. In nearly 55 percent of those 73 decisions, one or more of those traditionally conservative judicial principles was ignored.

Driving consumers and employees into forced arbitration takes away their constitutional right to a jury trial and spares mighty corporate defendants the embarrassment of testifying under oath, divulging corporate documents through discovery, or being treated equally with an injured person. Closing off class actions—the only economically feasible path to litigate high-volume, low-dollar fraud—creates a safe harbor for this form of corporate misbehavior. Many of the 73 Roberts Five decisions serve to protect corporations from these consequences.

Equality before the law is a fundamental tenet of our democracy. Courts and juries have a constitutional role in checking the power of wealthy elites who can push ordinary people around, and who are often not checked by legislatures and executive officials. While the chief justice has recently been inclined toward grand public gestures defending his court’s impartiality, the unmistakable pattern of partisan 5–4 decision leads to an inescapable conclusion: that the Roberts Five are pursuing political outcomes, and are willing to violate basic principles of American governance to execute the right-wing, corporate Republican game plan.

The fact that a presidential election was fought with the median vote on the Supreme Court at stake and only one side made it a priority remains remarkable.