The Supreme Court looms over our political landscape like a giant, immovable object. Americans have traditionally respected the court’s purview, believing that it serves justice, dispassionately. Yet the most controversial decision of the last twenty five years — Bush v. Gore — has profoundly shaken that sentiment. And other decisions, like the Citizens United ruling that prevented restrictions on corporation and labor outside expenditures in elections, are inviting further skepticism. Just who does the Court serve? Is this another case of Platinum Citizens getting one set of rules, and everyone else getting another set of rules? And is the Court dominated, like the rest of our government, by money? Do we have a bought Supreme Court?
This is a difficult, and troubling, question. And it doesn’t have an obvious answer. One place to look is at the Citizens United decision itself. The most remarkable aspects of the court’s decision-making in Citizens United is the Court’s attitude towards corruption. The traditional rationale behind campaign finance restrictions is that campaign money can corrupt or create the appearance of corruption. The court found that, unless there was an explicit quid pro quo and donations were coordinated with candidates, money was not a corrupting force. If there ever were a rationale to restrict free speech in the form of campaign spending, corruption was it. But since campaign money doesn’t corrupt, the Court found, the Constitution prohibits the government from regulating money in politics.
Most people believe in common sense, that if you give someone money, or spend money on someone’s behalf, you will have influence over them. Excessive influence over a politician leads to corruption. Yet the Supreme Court doesn’t see it this way. How did the Court come to have such odd ideas on corruption?
This goes back to the subtlety of money in our politics, and in particular, the purchase of ideas. In the 1970s, a think tank called the John Olin Foundation began promoting something called law and economics, a school of thought started at the University of Chicago that linked the incentive-based thinking of economics to legal rule-making. At the time, the ideas that led to the massive deregulatory impulses of the next three decades were first taking shape; the law and economics school was simply the legal offshoot of this well-funded pro-corporate trend. This new legal theory asserted that traditional legal concepts like equity and fairness were not as important as efficiency and incentives. And it expanded its influence quickly over law schools and courts very quickly through, well, gobs of money. According to conservative journalist John Miller, “the foundation sank more than $68 million into law and economics, and because of this it had a big impact on legal scholarship, the training of lawyers, and judicial behavior.”
Over the next four decades, the Supreme Court, and the judiciary in general, became far more amenable to analyses that left out concepts like fairness. And this was not simply due to the conservatives on the courts, though they led the charge. The Supreme Court helped get rid of usury caps for credit cards, and then struck down state laws capping penalty fees. These two significant decisions — the Marquette decision in 1978 and Smiley v. Citibank in 1996 — were unanimous. Bankruptcy filings have naturally spiraled upwards. It wasn’t just Congress, the regulators, or the President that deregulated our financial system, it was the Supreme Court as well. And if you want to know why bankers haven’t been prosecuted for the financial crisis, well just before the crisis, the court upheld a ruling that investment bankers who knowingly structured sham transactions they knew would be used to falsify Enron’s financial statements hadn’t committed fraud. Last year, the court ruled for Enron ex-CEO Jeff Skilling.
Today, this concept is so embedded in the judiciary that imposing rules to allow shareholders power over corporate management is now being struck down on the grounds that it would prevent “efficiency, competition, and capital formation.” Law schools now churn out lawyers who understand and believe in law and economics, who can be the Supreme Court clerks and legal functionaries to embed these arguments in every nook and cranny of our legal system. Questions of justice are now becoming questions of how to make the law serve the interests of corporations, rather than fundamental issues of liberty. Powerful groups like investment bankers and CEOs can commit unethical acts with no consequence, but more than one in every hundred American men is now incarcerated, most for low level petty violations.
Some people chalk up the Court’s problems to a conservative influence on the judiciary. These people point to both Justice Sam Alito and Justice John Roberts, who both argued they would treasure Court precedent during their nomination hearings. It would be hard to find a more outrageous case of not following precedent than Citizens United; corporate money had been restricted for a century. Even more egregious is the case of Justice Clarence Thomas, whose wife took $680,000 of money from the conservative Heritage Foundation, even as he did not disclose the money as required by law on his Federal disclosure forms. Thomas has also helped raise money for the Heritage Foundation. As businessman and ethical advocate Landon Rowland observed, the greatly admired scholar Alexis de Tocqueville distinguished America from corrupt European states by its willingness to subject “the state and its rulers to ordinary courts and the common law.” This is no longer the case if a Supreme Court Justice can receive family income from a conservative ideological institution, break the law and not disclose it, and then rule on issues on which that institution has weighed in.
But I think the problem is more fundamental. The bank-friendly cases occurred before these conservatives were on the Court, and they were unanimous decisions. Moreover, just looking at how Democrats responded to these Supreme Court decisions shows that the problem is bipartisan. In response to the Lily Ledbetter decision from the Court on gender-based pay discrimination, Congress passed a statute reversing the Court’s mandate. This is good as far as it goes, but where is the grand theory of bringing equity and fairness back to the judicial system? Congress can’t, and indeed doesn’t, respond every time the court system fails to act in pursuit of justice. The breakdown is becoming so severe that banks can commit rampant foreclosure fraud against debtors and the court system, without consequence. What good is a system of justice that protects the property rights of banks, but not the property rights of anyone else?
Fundamentally, what we need is a new legal theory for the 99%, a new way of looking at corruption. The law and economics school takes a limited approach to the question of justice, but there are seeds of new ways of thinking. Another way of modeling the problem has been pioneered by law professor Zephyr Teachout, who argues there is a structural anti-corruption principle embedded in the Constitution itself in the form of a separation-of-powers. She explores how the founders drafted the Constitution as a response to corruption, and argues that judges need to consider questions of corruption as a Constitutional principle. Other young scholars are remaking our intellectual landscape- telecommunications and cyberdefense specialist Marvin Ammori argues that the First Amendment is a design principle. Public space, he says, is essential for the First Amendment to operate, and judges need to consider that concept. As we see protesters camped out around the country and tussling with public officials over how they can showcase grievances, this seems far more important than more mundane First Amendment questions that typically deal with questions of flag-burning.
The question of money and the courts is not a simple one. Money does corrupt, but in the case of the courts, it isn’t illegal to fund intellectual research, nor should it be. What are needed are new ideas and new legal theories to counter the ones that failed. As we watch the torrents of money pour into our politics, it’s becoming increasingly impossible to believe that our national institutions are designed to do anything but protect the interest of a very narrow slice of the population. The Supreme Court’s power rests on a tradition of integrity and a belief that it will be just in its use of its power to interpret the law. It’s based on a belief that the Court’s interests are aligned with the rest of us, that we get the choice of pursuing justice when harmed. As this frays, the Court’s power will fray as well. This is in no one’s interest. We need a system of justice, but a system of justice that serves all of us.