Capitalizing on the excitement surrounding the looming vacancy on the Supreme Court, three activist groups today used an advertisement in the Washington Post to offer a biting criticism of the Supreme Court’s “corporate-biased” practices.
Unfortunately, despite appearing in a publication of high repute, the ad by Alliance for Justice, MoveOn.Org, and People For The American Way is light on facts and heavy on unsubstantiated criticism.
Consider its claim that the Supreme Court has allowed corporations to “dodg[e] liability for faulty medical devices.” The quotation alludes to Riegel v. Medtronic in which the eight justice majority declared that federal law preempts state common-law claims. This opinion does not represent a renegade court; rather, it is in keeping with The Medical Device Amendments, drafted in 1976, which expressly allow federal preemption. Federal preemption is not a whim of the Supreme Court, but the will of the people as represented by our legislators in Congress.
Or consider the ad’s claim that the Court is led by “the radical right … Justices Roberts and Alito.” It is true that John Roberts is the Chief Justice, but it is also true that Roberts was confirmed with a good deal of bipartisan support—something a true “radical” could certainly not have achieved.
Nor is the power as unevenly balanced in the hands of Roberts and Alito as the article suggests. One of the cases referenced by the article (Exxon Shipping v. Baker) was written by Justice Souter, widely regarded as a liberal voice on the Court. And as noted previously on The Legal Pulse, the current Court has issued a number of rulings in conflict with business interests.
These facts go unmentioned by the ad, which instead prefers to reference a “recent poll [that] shows that the majority of Americans believe that this Supreme Court favors big corporations over individuals.” This nameless poll was discovered—after some research—to be the creation of the polling firm Greenberg Quinlan Rosner, but was commissioned by MoveOn.org.
Furthermore, a closer look at the poll shows its main finding that, “[t]oo often, this Supreme Court favors big corporations over individuals,” is supported by only a slim majority of respondents. At the same time, only 17 percent of 801 respondents voiced a negative opinion of the Court; while 54 percent expressed admiration for the Court. The poll can be found here.
Efforts to depict the Supreme Court as an appendage of corporate America are politically and ideologically motivated and are unfounded. For a more academic, fact-based study of the Court’s decisions related to free enterprise, see this paper by Bradley W. Joondeph of Santa Clara University and Sri Srinivasan of O’Melveny & Meyers.