Last modified: 7:58 AM Saturday, 14 January 2017

A court disgraced

On the real meaning of ‘judicial activism’

As the Rehnquist-Roberts Supreme Courts have shown us over the past decade, “judicial activism” is a fluid term: It denotes a willingness by the courts to overrule decisions made by lower courts or legislatures that are distasteful to the courts’ ideological majorities. We have seen this not only in the disgraceful decision that effectively appointed as president George W. Bush — with whom the court’s majority was politically aligned, and to whom it was, in varying degrees, personally or professionally beholden — but also in several other less obviously discreditable but arguably more consequential rulings since that time.

Cartoon: equal protection and the 14th Amendment.

“It’s a big enough umbrella....”
[ Image Source ]

This has led to a belated but necessary evaluation of the role of the court in recent years, and in particular of the frequency with which the Fourteenth Amendment — the assurance of equal protection of the laws from state to state originally written to affirm the rights of black people — has been cited by the court as cause to protect powerful corporations from state regulation, and in general for the benefit of rich white men.

All of this analysis, however, is ahistoric.

Supreme Court decisions have cited the Fourteenth Amendment many times since it was ratified in 1868; in fact, it has been cited in more litigation than any other amendment. And once Reconstruction ended and the grand postwar reconciliation began, the court began to find new applications for the amendment that would have shocked its original framers, “demolish[ing] it as a protection for blacks, and ... develop[ing] it as a protection for corporations.”

Even the “corporate personhood” formalized earlier this year in Citizens United v. Federal Election Commission is not new: By 1886, Howard Zinn tells us, “the Supreme Court had accepted the argument that corporations were ‘persons’ and their money was property protected by the due process clause of the Fourteenth Amendment. Supposedly, the Amendment had been passed to protect Negro rights, but of the Fourteenth Amendment cases brought before the Supreme Court between 1890 and 1910, nineteen dealt with the Negro, 288 dealt with corporations.”

Zinn explains this phenomenon with stark lucidity: “The justices of the Supreme Court,” he wrote, “were not simply interpreters of the Constitution. They were men of certain backgrounds, of certain interests. One of them (Justice Samuel Miller) had said in 1875: ‘It is vain to contend with Judges who have been at the bar the advocates for forty years of railroad companies, and all forms of associated capital.’”

As a glance at the professional history of each Supreme Court justice will inform us, very little has changed since 1875, although the court did pass through a progressive period — with the rest of the country — making stabilizing reforms in response to the agitations of the 1960s and 1970s. I have no room here to append a biography for each respective justice, but it will not surprise you, I suspect, to find that most of them in the “conservative” majority have served as corporate attorneys in private practice, representing the interests of the very companies that are now at stake in some of the matters the court decides.

(If you want to learn more of the biographies and inferable biases of these justices, Wikipedia provides a fairly objective source: Read in it of Chief Justice John Roberts and justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas, all of whom bring a strong pro-corporate tilt to the court.)

There is nothing new about the Supreme Court’s judicial activism on behalf of corporate power. What we see today is a mere reaffirmation of the court’s role as a guarantor of class stability, assuring monied interests that they need fear no regulation from federal or state governments, and that their “right” to dominate American society will not be infringed.

Originally published as a review of a New Yorker article on judicial activism and the Supreme Court.
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