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Left’s case for pro-corporate Supreme Court lacks facts

Updated: May 20, 2011 1:56PM



Does the U.S. 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 American 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 vs. Environmental Protection Agency (2007), where the court recognized a new federal power to regulate carbon dioxide, to Wyeth vs. Levine (2009), where the court permitted a state lawsuit against a drug warning label that had been approved by the FDA, the allegedly pro-business Supreme Court has made big business very unhappy.

Last month, in Williamson vs. Mazda Motor of America, Inc., the court ruled that the federal Motor Vehicle Safety Act does not trump a much more restrictive car safety requirement enacted at the state level. That decision prompted Elizabeth Wydra, chief counsel for the left-wing Constitutional Accountability Center, to celebrate conservative Justice Clarence Thomas as a “surprising ally for progressives.”

Consider last year’s Citizens United vs. Federal Election Commission decision, which struck down several government restrictions on political speech funded by corporations and unions. It is demonized as “the Supreme Court’s gift to big business.” But don’t forget that the American Civil Liberties Union supported the winning side. So did legendary First Amendment attorney Floyd Abrams.

Why shouldn’t Citizens United 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 vs. Whiting will pose a similar conceptual problem. At issue is an Arizona law that imposes draconian punishments on businesses that hire illegal immigrants. The Chamber of Commerce, America’s quintessential pro-business outfit, is spearheading the challenge. Its allies in the fight include the National Immigrant Justice Center, the Service Employees International Union, the Southern Poverty Law Center and the National Council of La Raza. If the Chamber won, would that be a pro-business decision? Pro-immigrant? Pro-SEIU? All of the above?

The reality is that the Supreme Court reaches its decisions through a complicated and shifting mix of the justices’ judicial philosophies, political ideologies and personal quirks. To suggest otherwise is 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, where this essay was posted online.



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