THE BLOG
08/12/2014 03:12 pm ET | Updated Oct 12, 2014

The SCOTUS Should Stop Overprotecting the Rich and the Powerful: They Don't Need the Help

The biggest winner in the Supreme Court over the last few years has been the United States Chamber of Commerce. According to one source, the Chamber has an amazing 80 percent win rate over the last three terms in cases where it filed briefs. But it would be a mistake to think the Roberts Court is more pro-business than other Supreme Courts. In fact, the Roberts Court is simply carrying on a long and sorry tradition of the Justices favoring the rich and the powerful against the poor and the weak.

The Court first started striking down state and federal laws with regularity in the late 19th century and between 1900 and 1936 struck down over 200 laws dealing with minimum wages, overtime rules, working conditions, and union protections. These strong exercises of judicial review uniformly helped big moneyed interests and corporations and hurt the poor. The invalidation of these laws ended only when FDR threatened to pack the Court and then when he had the opportunity to replace retired or deceased Justices.

In the area of civil and political rights, the Court has an even worse historical record. In the mid-19th century, the Court prevented Congress from ending slavery in the territories, a decision many historians believe helped lead to the Civil War. In 1875, the Justices overturned a Congressional law prohibiting racial discrimination in restaurants and hotels, while in 1896 the Court placed its stamp of approval on state required segregation of the races in those places. These two decisions strongly propped up racial apartheid in this country for generations.

In 1954, the Court decided Brown v. Board of Education which was hailed then (and now) as a symbol of the Court's protection of civil rights, but the truth is that the Court backed away from enforcing Brown almost as quickly as it handed it down. In Brown II, decided the same year, the Court said that public school districts had to comply with the decision with "all deliberate speed," which actually meant not at all. Nine years later, in 12 Southern States, roughly 98 percent of schools were still all white or all black, and throughout the South blacks still were not allowed in restaurants, hotels, and theaters.

Formal segregation only changed when Congress enacted the Civil Rights Act of 1964 which allowed the Executive Branch to withhold huge grants of federal aid to those states which still required segregated schools. Segregation in public places only stopped when the civil rights movement turned to civil disobedience.

Since the early 1970s, the Court has failed to enforce the promise of Brown by holding that school districts have no obligation to remedy segregated schools caused by prior discriminatory governmental practices, and by forbidding the use of limited racial balancing to alleviate the problem even when agreed to by parents, school boards, and voters.

In the area of free speech, the Court historically has not interfered with government attempts to silence protesters in times of war although the Court did go through a short period in the 1960's when it strongly protected the rights of political dissenters. That didn't last long, however, and now the Court's free speech doctrines shows a preference for protecting corporate spending on political campaigns and commercial speech by big business (which at one time was barely protected at all), while not showing sympathy for strong anti-government speech that could really make a difference (the ineffectual dissenter is still a favorite of the Court for symbolic reasons).

The irony of the Court's consistent protection of big, moneyed interests over workers and ordinary citizens is that those plaintiffs need the Court's help the least because they have greater access to the political system than the poor, the weak, and discreet minorities. We would all be better off if the Court decided that the rich and powerful already have access to the political process and therefore don't need unelected judges to give them another chance to overturn laws enacted by the very governmental officials the rich and powerful help put in office in the first place. If those officials at times make decisions that actually help ordinary workers or consumers against large corporations (such as with anti-discrimination laws or class action legislation) or minority groups against majorities (such as with affirmative action plans), the Court shouldn't interfere unless the laws clearly and obviously violate the Constitution (a rare event). The poor and weak have no place to go if the Court turns them away but the same is simply not true for the rich and powerful.