Just like clockwork, whenever a vacancy opens up on the Supreme Court, activist public interest groups begin churning out “reports.” To call People for the American Way’s (PFAW) “The Rise of the Corporate Court: How the Supreme Court is Putting Business First” a report is quite a stretch, but then again, so are the entire document’s claims and conclusions. Its underlying premise seems to be that neither businesses nor the people who own and run them merit the same legal rights as all citizens. The analysis of course won’t acknowledge that the “people” for whom they claim to speak are employees, pensioners, shareholders, and consumers of these businesses, and that courts’ failure to uphold the companies’ statutory or constitutional protections have a direct, negative impact on those people.
PFAW supports its assertion that the Court is undisputedly “pro-business” by selectively citing to cases like Bush v. Gore (which of course affected all Americans, including businesses, but no matter), Exxon Shipping v. Baker and Philip Morris v. Williams. Far from being some off-the-reservation Roberts Court creation, Williams, and the due process theory supporting it, follows a long line of cases on the constitutionality of punitive damages. Justices Breyer and Souter joined the majority. Rather than explain the complicated maritime law issues at play in Baker (also a punitive damages case), or note the convoluted nature of the opinion (authored by Justice Souter), the document dwells on the case’s factual underpinnings to demonize the result and the Court’s majority.
If the Court is so decidedly “pro-business,” then how can PFAW explain cases like last year’s Wyeth v. Levine, which allows state failure-to-warn lawsuits against makers of FDA-approved drugs? If it feels the Court openly advances the interests of tobacco producers, how does one account for the 2008 ruling Altria Group v. Good, which allowed state consumer fraud suits against such companies to go forward? Or three decisions from this year, Jones v. Harris Associates (unanimously allowing shareholder suits vs. investment advisors), Shady Grove Orthopedic v. Allstate (Scalia majority opinion permitting federal class action lawsuits in a state which prohibits such suits), and, just issued this morning, Merck v. Reynolds (unanimous Breyer opinion permitting securities fraud suits involving Vioxx to proceed)?
Sadly, as long as major newspapers are willing to reference such “reports,” as The Washington Post did in a story yesterday which devoted several paragraphs to PFAW’s allegations, ideological diatribes like The Rise of the Corporate Court will continue to mislead the public and its policy makers on the Supreme Court and the critical role the courts play in our democracy.