The Present Supreme Court Believes "The Business of America is Business"

By Norman Markowitz

There is a long and generally superficial article in the New York Times magazine section by Jeffrey Rosen, a law professor who often writes articles on U.S. legal questions for the NYT.

The article is filled with gloating and blustering by old and young Chamber of Commerce fogies about the successes of business groups in using Supreme Court law clerks to help set the agenda for pro business, anti-consumer and anti labor decisions.

Rosen uses the term "populism" in a simplistic way to look at the history of the Supreme Court from the 1930s to the 1970s, when the court reflected the rise of the New Deal coalition in U.S. politics and essentially moved in two complementary directions--sustaining government regulation of business and protection of citizens through social welfare legislation previous courts had declared unconstitutional and expanding in fact the civil rights and civil liberties of citizens by raising the bar for local, state and federal governments to either restrict those rights, or in the case of Southern segregation and disenfranchisement, to legally tolerate the former and turn a blind eye to the latter. That was not not about "populism" but major political changes rooted in the American New Deal, in the struggles of workers and minorities, which continued for decades after the development of the cold war blunted the further development of those changes in the legislative and executive branches of the government. (The courts often reflect major transformations later than the other branches of government because judges and appointed for long terms and in the case of the Supreme Court for an indefinite term.)

Although Rosen deals with the successful lobbying and influence of the Chamber and business groups on the court (in ways that, if one was dealing with left law clerks who belonged to the National Lawyers Guild, for example, would lead probably to investigations and purges, if not arrests) it is important to remember that the federal courts began to move significantly to the right in the 1970s and have on economic questions and increasingly on social questions reflected the hegemony of what I call an Anti-New Deal elite consensus which emerged in the Reagan years and has sought to bring the late 20th century and the 21st back to pre New Deal standards. From the 1880s to the late 1930s, except for a few really noteworthy dissenters, the federal judiciary was dominated by corporate lawyers and former politicians appointed by mostly Republican administrations who declared the first federal income tax and child labor laws unconstitutional, undermined the use of anti-trust laws against corporations while applying them to trade unions, and closed its eyes to real life in order to sustain abstract
conceptions of laissez faire, states rights, and legal precedents taken from decisions made in a per-industrial era. Those forces control who the Supreme Court today aren't that different from their pre New Deal counterparts and the the judges were appointed by Gerald Ford (Ronald Reagan, George H.W. Bush, Bill Clinton, and George W. Bush). Their decisions reflect their political background their class outlook.

What is valuable about Rosen's article for our readers is that it makes the point that Bill Clinton's two appointees, Stephen Breyer and Ruth Bader Ginsburg, are as likely to protect corporate power and prerogatives from challenges by labor and consumer groups as John Roberts and Clarence Thomas, however less rightwing they may be on a variety of social and civil liberties issues. That is one of the dirty little secrets so to speak of the Clinton administration. As in national policy, Clinton accepted and sought to moderate the Anti-New Deal policies and mindset of the Reagan presidency. Instead of appointing militant progressives who would offer a serious challenge to the Rehnquist Court and lay a foundation for future administrations which would establish the progressive majority that Franklin Roosevelt helped to craft in the New Deal, his appointments of establishment centrists (sometimes called "process liberals") more comfortable with lawyers like John Roberts than they would be with Hugo Black or Thurgood Marshall, strengthened the power of the right over the federal judiciary.

We will need militant progressives on the Supreme Court and throughout the federal judiciary to both save the advances of the 20th century which have not yet been dismantled and catch up with history in the 21st century. There is a decent chance that Barack Obama, given the social forces which have become the foundation of his campaign, would begin to make such appointments. Given Hillary Clinton's "experience" in her husband's administration, there is very little chance that she would, however large her victory, since her world-view is pretty much in line with both her husband and the pro corporate albeit "socially liberal" Justices he appointed to the Supreme Court.