The last thing America needs is more Supreme Court justices who think that corporations can do no wrong. We're still reeling from the misdeeds of AIG and Wall Street, BP Oil, Massey Coal, JP Morgan and Haliburton -- just a few of the corporations that have recently inflicted terrible losses on families across America and society as a whole after capturing regulatory agencies, corrupting public officials, and flouting the law.
But the Roberts Court majority sees no evil, handing out victories by the bushel to big business. Without even being asked to do so, five Justices in 2010 overrode their colleagues in the Citizens United case and bestowed upon the CEOs the power to spend trillions of dollars from corporate treasuries promoting compliant politicians to the public in campaign season.
Yet, just when it looked like things couldn't get any worse, Republican presidential candidate Mitt Romney selected as his top legal adviser Robert Bork, a conservative polemicist whose career has been devoted to the proposition that corporations can basically do no wrong, the courts should faithfully serve the corporate agenda, and democratic government should step out of the way.
While Bork is an authoritarian statist when it comes to the rights of individual Americans to obtain birth control or read books, have sex or watch movies that Bork disapproves of (see Borking America: What Robert Bork Will Mean for the Supreme Court and American Justice), he is a laissez-faire libertarian when it comes to the rights of large corporations to ditch environmental regulation, fire pro-union workers and generally have their way with the rest of us without regulatory restraint. He seeks hierarchical discipline for natural persons but maximum freedom for big businesses to merge with one another, purge their workers, and splurge on pet politicians.
The Bork Rule: Corporate Power Over Government, Corporate Government Over People
The key to seeing what Bork's hand-picked judges would do on the bench is analyzing Bork's own record as a judge on the United States Circuit Court for the District of Columbia.
In August 1987, during the controversy over President Ronald Reagan's nomination of Judge Bork to the United States Supreme Court, the Public Citizen Litigation Group published an exhaustive and devastating report on Bork's record as a judge.
The authors could find no "consistent application of judicial restraint or any other judicial philosophy" in Bork's work on the Court. Rather, by focusing on split decisions, where judicial ideology is made most plain, Public Citizen found that "one can predict [Judge Bork's] vote with almost complete accuracy simply by identifying the parties in the case."
When the government litigated against a business corporation, Judge Bork voted for the business interest 100 percent of the time. However, when government acted in the interest of corporations and was challenged for it in court by workers, environmentalists and consumers, Bork voted nearly 100 percent of the time for the government.
Thus, what we can think of as the Bork Rule, a rule that now suffuses conservative judicial activism: Corporations over government, corporate government over people.
In the crucial field of administrative law, for example, Judge Bork "adhered to an extreme form of judicial 'restraint' if the case was brought by public interest organizations against a government regulation or policy. His vote favored the government in every one of the split decisions in which public interest organizations challenged regulations issued by federal agencies." In these cases, Judge Bork defended, for example, the Reagan administration's corporate-friendly rules relating to the environment, the regulation of carcinogenic colors in food, drugs and cosmetics, and the regulation of companies with television and radio licenses, as well as privacy rules in family planning clinics. Bork tends to vote to uphold government policy when corporations like it and consumers, environmentalists, and workers are on the other side.
In the eight split decisions where a corporate interest challenged the government's regulatory policy or ruling, Judge Bork voted straight down the line against the government and for business -- every single time.
Bork's Result Orientation: Workers Lose, Polluters Win
What the Bork Rule means is that there is no formal integrity to his legal reasoning. The way to figure out who is going to win in a case is simply by identifying the parties. The reasoning flows out of his choice of favorites appearing before him, and this is a style of judging that is now pervasive throughout the federal circuit courts.
Consider Restaurant Corporation of America (RCA) v. National Labor Relations Board, 801 F.2d 1390 (D.C. Circuit), a 1986 case that arose, appropriately enough for Judge Bork, in the Watergate complex. Here we see Bork reaching out to overturn an administrative decision that should have been given deference by pasting a completely new doctrine onto the governing statute.
Judge Bork's preferred party in the case, the Restaurant Corporation of America (RCA), operated a number of restaurants at the Watergate. It fired a waitress and a waiter for "talking union" to other employees on the job in violation of a "no-solicitation rule" during work hours. The workers, in less than a minute or two, would ask fellow restaurant employees: ""would you be interested in pursuing getting a union?"
The law provides that employees can engage in pro-union speech on their own time or during work breaks, but may not do so during the work day if there is a valid "no-solicitation" rule in place that is applied across the board to all forms of employee-to-employee solicitation.
In this case, the National Labor Relations Board (NLRB) reversed the firing of the two employees as anti-union discrimination because the employees showed that there were at least six cases of far more extensive intra-office solicitation by workers going door-to-door to solicit fellow employees, all forms of solicitation that clearly violated the company rule but were nonetheless allowed. Thus, to fire the pro-union workers violated the National Labor Relations Act, which forbids interference with -- and discrimination against -- employees exercising union organizing rights.
But Judge Bork, pulling a rabbit out of a hat, wrote an opinion for a 2-1 panel decision reversing the NLRB decision and reinstating the discharge of the workers. (Joining his opinion and giving him the majority was none other than then-Judge and soon-to-be-Justice Antonin Scalia.) The trick here was to say that the work-day solicitations that had been allowed on the premises by RCA in the past -- which Bork grudgingly conceded "violated the terms of the employer's no-solicitation rule" -- were really no big deal at all.
Bork wrote of these solicitations:
All were instances of intra-employee generosity designed to express appreciation of fellow employees on occasions such as birthdays or departures. Whatever minimal disruptive effect such solicitations may have is counter-balanced by an accompanying increase in employee morale and cohesion.
In other words, Bork changed the law to say that pro-union workers could be fired for violating a no-solicitation rule at work, even if it is discriminatorily applied against them, so long as the employer is allowing only solicitations that it believes will increase "employee morale and cohesion." Christmas banquets, birthday parties, Boy Scout suppers, retirement dinners -- all of these good forms of speech can be promoted through aggressive on-site solicitation during work hours at work, but workers can be fired for talking union, even if it takes less time to do so and it is less disruptive of actual work, because this is bad, demoralizing speech. But this distinction has no basis at all in the relevant statute -- the National Labor Relations Act. A magician at corporate victories, Judge Bork invented this doctrine to camouflage a policy of blatant anti-union "discrimination" within the actual meaning of Section 8(a)(3) of the Act.
To get to this result, Bork overthrew the usual judicial deference to the expertise of the administrative board, something he insists upon whenever there is a pro-corporate ruling at stake. He ignored the plain language and meaning of the statute which makes "discrimination" against pro-union speech an "unfair labor practice." He made up a new doctrine and rationale to advance a pro-employer purpose.
Bork's conservative colleague, Judge MacKinnon, was so convinced that the case presented a company's disparate enforcement of a no-solicitation rule that he dissented and castigated Bork for his opinion: "Despite the clarity of the controlling law," Judge MacKinnon wrote, " the majority opinion ignores it and trenches on important policymaking prerogatives of the National Labor Relations Board." He reminded Bork of the basic principle of administrative law embodied in the famous Chevron case: "If the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.""
The same pattern of pro-corporate judicial activism characterizes a Bork opinion that became a crucial point of discussion in the hearings over his failed 1987 Supreme Court nomination. In a 1984 case called Oil, Chemical and Atomic Workers International Union v. American Cyanamid Co., 741 F.2d 444 (D.C. Cir. 1984), Bork found that the Occupational Safety and Health Act did not protect women at work in a manufacturing plant from a company policy that forced them to be sterilized -- or else lose their jobs -- because of high levels of lead in the air. The Secretary of Labor had decided that the Act's requirement that employers must provide workers "employment and a place of employment which are free from recognized hazards" meant that American Cynamid had to "fix the workplace" through industrial clean-up rather than "fix the employees" by sterilizing or removing all women workers of child-bearing age.
Bork strongly disagreed. He wrote an opinion for his colleagues apparently endorsing the view that other clean-up measures were not necessary or possible and that the sterilization policy was, in any event, a "realistic and clearly lawful" way to prevent harm to the women's fetuses. Because the company's "fetus protection policy" took place by virtue of sterilization in a hospital -- outside of the physical workplace -- the terms of the Act simply did not apply, according to Bork. Thus, as Public Citizen put it, "an employer may require its female workers to be sterilized in order to reduce employer liability for harm to the potential children."
Of course, when an administrative agency renders an opinion that is to the liking of corporate parties, Judge Bork insists upon deference to the agency. For example, in Natural Resources Defense Council v. EPA, 804 F. 2d 710 (1986), he wrote a decision that gladly upheld the Reagan-era Environmental Protection Agency's reliance on economic factors to weaken the Clean Air Act. The Act requires the EPA Administrator to set emission standards "at the level which in his judgment provides an ample margin of safety to the public," a health-centered standard that the Reagan EPA suddenly diluted by granting explicit and equal attention to the economic costs to corporations of compliance with health regulation. When the NRDC challenged this radical regulatory departure from the text of the statute, Bork wrote: "we must uphold the agency's selection of factors to employ in fleshing out its authority if we find the agency's choice a reasonable one." While Bork brushes off agency deference in cases where corporations are unhappy with regulatory rules, he swears by it when agency regulators are siding with corporations.
We can fully expect a Bork-infused Supreme Court and federal judiciary to continue promoting the basic infallibility of corporate power. With Bork at the helm, we will see more impunity and more unaccountability in corporate structures that are "too big to fail" and "too big to jail."
Follow Jamin Raskin on Twitter: www.twitter.com/jamie_raskin