J. Scott Applewhite/AP Photo
While the language of recent decisions may seem alluring, the ideology of the Court is not experiencing a tectonic shift.
The recent wave of Supreme Court decisions has liberals feeling elated, or at least relieved. In the first session since the installation of Amy Coney Barrett (and the enshrining of the 6-3 conservative supermajority), the Court decided not to vanquish the Affordable Care Act mid-pandemic, in its third major legal challenge after the first two failed, voting 7-2 in favor of upholding it. Then, in a case about foster care and Catholic Social Services in the city of Philadelphia, the Court gave about the best ruling liberals could have reasonably expected, narrowly deciding in a way that retained LGBT rights. Finally, on Monday, the Court ruled against the NCAA in a case over payment of players, which had Justice Brett Kavanaugh invoking antitrust as a labor issue in ways that didn’t map to a hard-right ideologue.
“[T]he latest developments suggest a possible 3-3-3 pattern, with [Chief Justice John] Roberts, Barrett and Kavanaugh at the center-right, putting a check on their more conservative brethren who regularly push to overturn precedent,” wrote CNN legal analyst Joan Biskupic. Despite Mitch McConnell’s multiple heists of various seats, and fears that total Democratic mismanagement of the Barrett confirmation had given the GOP a judicial proxy to overrule the Democratic agenda, maybe, the theory goes, everything is fine. Liberal judicial analysts have seen in this session assurances that the tricky business of Court reform, which Democrats were too timid to pursue anyway, is thankfully not necessary.
Of course, the notion that the Supreme Court has cleaved into a 3-3-3 split—with Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch making up a hard-right sect; Justices Barrett, Kavanaugh, and Roberts as the sober, center-right moderates; and Justices Elena Kagan, Stephen Breyer, and Sonia Sotomayor the counterbalancing liberals—is nonsense, and anyone finding solace in these recent rulings is doing so at great risk. The Court, in its most recent decisions especially and in the entire body of work of the Roberts Court broadly, is much closer to a 9-0 corporatist supermajority than some evenhanded triad. Liberals may be desperately hoping for some conservative wedge that will solve their problems without having to do anything, but that won’t solve the many problems of our unbalanced judiciary.
The commitment to pro-corporate policy remains intact, the judicial chamber continuing to channel the Chamber of Commerce.
Let’s start, for example, with the ACA decision, which even Justice Thomas joined the majority in upholding. “[H]ere, there is a fundamental problem with the arguments advanced by the plaintiffs in attacking the Act—they have not identified any unlawful action that has injured them,” Thomas wrote in his concurrence. Which is to say: This case against the ACA was so fundamentally weak that not even Thomas, as far right as they come, could bring himself to conceive of it in ideological or political terms. No such restraint from Alito and Gorsuch, but a huge admission from someone like Thomas, who has had no problem making such leaps in the past. The case was really that bad.
Or take Monday’s unanimous decision, in which the Court upheld the lower court’s ruling in NCAA v. Alston striking down the NCAA’s rules prohibiting education-related payments, like computers and graduate scholarships, to players. That decision even had Justice Kavanaugh talking about antitrust in his concurrence, writing that “[a]ll of the restaurants in a region cannot come together to cut cooks’ wages on the theory that ‘customers prefer’ to eat food from low-paid cooks.” Again, reading Justice Kavanaugh invoke monopsony comes as a shock to many who expected him to stake out the Court’s farthest-right bounds (though he does proceed to condemn “price-fixing labor,” which reads more like an anti-union sentiment than anything else).
But the Court’s actual ruling is hardly a send-up of corporatist policy. “Don’t be deceived: The Supreme Court just did the bare minimum that it could for college athletes. And, in doing so, it implicitly affirmed the lower courts’ use of cross-market balancing, which potentially opens the door for employers across the economy—whether colleges in the NCAA, Uber, or Amazon—to impose restraints on workers and escape liability by pointing to theoretical benefits to consumers,” wrote Sandeep Vaheesan, legal director of the Open Markets Institute, in a statement after the ruling. “The Court also expressed general skepticism about antitrust rules governing business conduct—language that could have adverse effects on future antitrust action against powerful corporations across the economy.”
So while the language may seem alluring, the ideology of the Court is not experiencing some tectonic shift. The commitment to pro-corporate policy remains intact, the judicial chamber continuing to channel the Chamber of Commerce.
In fact, it was another 9-0 decision that tells more about where the Court is at ideologically in its current state. That would be the much tweeted-about Nestlé USA v. Doe, where Obama appointee Neal Katyal argued on behalf of Nestlé (and agricultural giant Cargill) in a case where the companies were alleged to have provided child-slavery-reliant farms on the Ivory Coast with technical and financial assistance and routinely purchased their product, despite that conscripted workforce.
Justice Thomas delivered the opinion, which concluded that the plaintiffs improperly sought extraterritorial application of the Alien Tort Statute, on the grounds that nearly all such conduct, including training, equipment, and cash to farmers, occurred in the Ivory Coast and not the United States. So the human rights violations, and the conduct of these American agribusiness giants, could not even be taken up, because the former child slaves who brought the case didn’t properly follow The Rules.
“The Roberts Court, including its ‘liberals,’ has been an outstanding ally of corporate power.”
Joining in this dismissal on technical, procedural grounds was liberal hero Justice Sotomayor. Despite certainly knowing the case was doomed to fail given that it would have infringed upon corporate profiteering, an absolute no-no in today’s Supreme Court, she nevertheless abstained from a dissent on human rights grounds. As evidenced by Alito and Gorsuch’s dissent in the ACA case, going beyond the rules and the facts to make a statement is well within bounds, at least on one side of the ideological spectrum.
“Today’s Supreme Court decision is a giant step backward for US leadership on international law and protecting human rights,” EarthRights International said in a withering statement. “The ruling implies that US corporations whose executives decide, from comfortable American boardrooms, to profit from murder, torture and slavery abroad cannot be sued in US federal courts for violating international law.”
Meanwhile, also on Monday, there was another case that the Court refused to even hear. Via dismissal, the Court delivered a major victory to Goldman Sachs, which successfully dodged a class action lawsuit from investors accusing the bank of obscuring conflicts of interest when creating those high-risk subprime securities that then went bust in the 2008 financial crisis.
The case, brought by pension fund purchasers like the Arkansas Teacher Retirement System, accused the company and three former executives of violating an anti-fraud provision of the Securities Exchange Act of 1934 and a related SEC regulation. No matter, said the Court, tossing it aside.
The decision is a tone-setter, as onlookers had been curious how a conservative-dominated Court would view investor-based class action suits, and attempts for redress when major financial firms defraud their clients. Those firms have long sought to minimize the ability of plaintiffs to collectively sue, in order to avoid the higher damages that tend to be awarded in class action suits. Of course, Goldman needed not hope for the conservative majority to cover for them; the entire Court, liberal, “center-right,” and archconservative, was happy to grant it in lockstep.
As AFL-CIO president Richard Trumka wrote for the Prospect just last year, on workers’ rights, consumer protection, and racial justice, the Roberts Court, including its “liberals,” has been an outstanding ally of corporate power, while Justice Roberts himself “is actually one of the foremost guardians of the corporate class in the history of the Court.”
No amount of liberal insistence on technicality will make the Court anything else than what it is: a breakaway, anti-democratic faction with a conservative mandate to steamroll any obstacle to corporate power and profit-taking. There’s no taxonomical solution to this, and it isn’t made better by grouping in threes what should be grouped in nines.
Liberals, Democrats, or anyone invested in basic rights beyond the rights of the corporation have to recognize this reality. The Court has to be reformed head-on, just as was widely accepted in October and November of 2020, as McConnell installed Barrett in Justice Ruth Bader Ginsburg’s seat. That necessity remains even as President Biden shies away from fights far less daunting, and the news cycle has turned away from Court reform and toward a gleeful reassessment of the current session.
