The Corporate Supreme Court
In The Public Interest, 7/18/11
By Ralph Nader
Five Supreme Court Justices--Scalia, Thomas, Roberts, Alito and Kennedy are entrenching, in a whirlwind of judicial dictates, judicial legislating and sheer ideological judgments, a mega-corporate supremacy over the rights and remedies of individuals.
The artificial entity called "the corporation" has no mention in our Constitution whose preamble starts with "We the People," not "We the Corporation."
Taken together the decisions are brazenly over-riding sensible precedents, tearing apart the state common law of torts and blocking class actions, shoving aside jury verdicts, limiting people's "standing to sue", pre-empting state jurisdictions--anything that serves to centralize power and hand it over to the corporate conquistadores.
Here are some examples. (For more see thecorporatecourt.com). Remember the disastrous Exxon Valdez oil spill in Alaska's Prince William Sound twenty two years ago? It destroyed marine life and the livelihoods of many landowners, fishermen and native Alaskans. Its toxic effects continue to this day.
Well, after years of litigation by Alaskan fishermen, the Supreme Court took the case to review a $5 billion award the trial court had assessed in punitive damages. A 5 to 3 decision lowered the sum to $507.5 million which is less than what Exxon made in interest by delaying the case for twenty years. Moreover, the drunken Exxon captain's oil tanker calamity raised the price of gasoline at the pump for awhile. Exxon actually made a profit despite its discharge of 50 million gallons.
The unelected, life-tenured corporate court was just getting started and every year they tighten the noose of corporatism around the American people.
In Bush v. Gore (5-4 decision), the Court picked the more corporate president of the United States in 2000, leaving constitutional scholars thunderstruck at this breathtaking seizure of the electoral process, stopping the Florida Supreme Court's ongoing state-wide recount. The five Republican Justices behaved as political hacks conducting a judicial coup d'état.
But then what do you expect from justices like Thomas and Scalia who participate in a Koch brothers' political retreat or engage in extrajudicial activities that shake the public confidence in the highest court of the land.
Last year came the Citizens United v. FEC case where the Republican majority went out of its way to decide a question that the parties to the appeal never asked. In a predatory "frolic and detour," the 5 justices declared that corporations (including foreign companies) no longer have to obey the prohibitory federal law and their own court's precedents.
Corporations like Pfizer, Aetna, Chevron, GM, Citigroup, Monsanto can spend unlimited funds (without asking their shareholders) in independent expenditures to oppose or support candidates for public office from a local city council election to federal Congressional and Presidential elections.
Once again our judicial dictatorship has spoken for corporate privilege and power overriding the rights of individual voters.
Eighty percent of the American people, reported a Washington Post poll, reject the Court's view that a business corporation is entitled to the same free speech rights as citizens.
Chances are very high that in cases between workers and companies, consumers and companies, communities and corporations, tax payers and military contractors--big business wins.
Inanimate corporations created by state government charters have risen as Frankensteins to control the people through one judicial activist decision after another. It was the Supreme Court in 1886 that started treating a corporation as a "person" for purposes of the equal protection right in the fourteenth amendment. Actually the scribe manufactured that conclusion in the headnotes even though the Court's opinion did not go that far. But then it was off to the races. These inanimate giants, astride the globe, have privileges and immunities that "We the People" can only dream about, yet they have equal constitutional rights with us (except for the right against self-incrimination (Fifth Amendment) and more limited privacy rights.)
What is behind these five corporate Justices' decisions is a commercial philosophy that big business knows best for you and your children. These Justices intend to drive this political jurisprudence to further extremes, so long as they are in command, to twist our founders clear writings that the Constitution was for the supremacy of human beings.
To see how extreme the five corporate justices are, consider the strong contrary view of one of their conservative heroes, the late Chief Justice William Rehnquist in a case where a plurality of justices threw out a California regulation requiring an insert in utility bills inviting residential ratepayers to band together to advance their interests against Pacific Gas and Electric. The prevailing justices said--get this--that it violated the electric company monopoly's first amendment right to remain silent and not respond to the insert's message.
Conservative Justice Rehnquist's dissent contained these words--so totally rejected by the present-day usurpers: "Extension of the individual freedom of conscience decisions to business corporations strains the rationale of those cases beyond the breaking point. To ascribe to such artificial entities an "intellect" or "mind" for freedom of conscience purposes is to confuse metaphor with reality."
It was left to another conservative jurist, the late Justice Byron White, dissenting in the corporatist decision First Nat'l Bank v. Bellotti (1978) to recognize the essential principle.
Corporations, Justice White wrote, are "in a position to control vast amounts of economic power which may, if not regulated, dominate not only the economy but also the very heart of our democracy, the electoral process." The state, he continued, has a compelling interest in "preventing institutions which have been permitted to amass wealth as a result of special advantages extended by the State for certain economic purposes from using that wealth to acquire an unfair advantage in the political process…. The state need not permit its own creation to consume it." (emphasis added)
Never have I urged impeachment of Supreme Court justices. I do so now, for the sake of ending the Supreme Court's corporate-judicial dictatorship that is not accountable under our system of checks and balance in any other way.