THE BLOG
08/16/2016 07:17 am ET Updated Aug 17, 2017

No Time For Trump: Transforming Our Corporate Supreme Court

DON EMMERT via Getty Images

The GOP's unprecedented refusal to consider President Obama's nominee to the Supreme Court underscores the stakes in the 2016 race. One is whether the Roberts court will continue to shield corporate interests at whatever cost to law or reason.

For millions of Americans, two decisions dramatize this question.

In Citizens United, five conservative justices -- Roberts, Kennedy, Scalia, Thomas and Alito --reached well beyond the scope of the case, finding that businesses and individuals have a constitutional right to spend unlimited sums to defeat candidates who displease them. This decision reversed long-established precedent and shredded campaign finance laws aimed at limiting the power of money in politics. In short, the court changed established procedure and existing law to empower plutocracy over democracy.

The Lily Ledbetter case was almost as remarkable. The same conservative justices allowed Goodyear to invoke the statute of limitations to protect decades of pay discrimination it had concealed from a female employee -- even though she filed suit promptly upon discovering that she was earning less than her male counterparts. The essence of this ruling was that a corporation can perpetuate pay discrimination by hiding what it's doing.

But these cases are not notorious because they are unique. In the jurisprudence of the Roberts court, they are business as usual -- in every sense of that phrase.

In a host of rulings governing labor law, workplace law, tort law, election law and consumer regulation, the Supreme Court has been less a repository of justice than a precinct of the Chamber of Commerce. Literally. An empirical study for the Center For Constitutional Accountability tracked 60 Supreme Court cases involving corporate interests from 2006 to 2009. During that period, the court sided with positions taken by the Chamber of Commerce in 68 percent of cases before it. For the term commencing in 2009, that percentage rose to 81 percent.

This pro-business agenda is confirmed by an exhaustive study of Supreme Court case law from 1946 through 2011. The authors are professors Lee Epstein and William Landes, and federal appellate judge Richard Posner, an eminent conservative legal scholar. Their research confirmed that the Roberts court is "much friendlier to business than either the Burger or Rehnquist courts..." In particular, the authors found, the court is much more likely to review and reverse lower court decisions unfavorable to business interests than decisions which protect them.

The reasons for this pro-business bias are spelled out in another scholarly paper by professors Neil Devins and Lawrence Baum -- "Split Definitive: How Party Polarization Turned The Supreme Court Into A Partisan Court."

First, Justices are now chosen from polarized social networks which espouse a fixed political and social ideology -- most particularly the Federalist Society -- and which exist to identify and groom conservative lawyers to become ideologically reliable judges. These groups screen potential nominees for Republican presidents, ensuring the appointment of Justices whose rulings in key matters are all but preordained.

This process gave us Justices Scalia, Thomas, Alito and Chief Justice Roberts -- all earmarked by the Federalist Society. Once on the court, these justices have maintained strong ties to the Society, attending and speaking at its functions. In short, the Court's conservative activists emanate from, and continue to inhabit, a world defined by political ideology.

There is very little chance that their rulings on matters dear to the political right will change -- their abiding loyalty is to the conservative network which put them on the court, not to precedent or broader ideas of justice. Indeed, another study by professors Nancy Scherer and Banks Miller found that federal judges who are members of the Federalist Society are twice as likely to cast votes which reflect conservative ideology than Republican nonmembers -- let alone Democrats.

With Justice Scalia's death, the Supreme Court is now split 4 to 4 between Republican and Democratic appointees. Thus whoever selects Scalia's replacement will dramatically affect whether ordinary citizens harmed by corporations can seek redress in court.

Now comes Donald Trump.

In his most successful effort to secure the allegiance of Republican conservatives, Trump released a list of 11 prospective nominees vetted by the Federalist Society or its ideological running mate, the Heritage Foundation. As one would expect, all are hardline conservatives, and fit perfectly into Trump's promise to nominate justices who are clones of Antonin Scalia. Here is how Nan Aron, president of the progressive Alliance for Justice Action Council, characterized Trump's choices:

The list includes some of the most extreme conservatives on the federal bench today. Their opinions demonstrate open hostility to Americans' rights and liberties, including reproductive justice and environmental, consumer and worker protections. They have ruled consistently in favor of the powerful over everyone else. They would move the needle even further to the right on the Supreme Court.

In assessing the damage Trump could inflict by embedding a conservative majority, the record of the Roberts court is instructive. A telling way to demonstrate this is to review decisions by the court -- beyond Citizens United and Ledbetter -- in the area of corporate law.

Start with attempts to gut class-action lawsuits. As it happens, I know a bit about this subject -- in 17 years as a lawyer, I first brought class-actions on behalf of stockholders against corporations and, later, defended such suits. So I can speak with knowledge and, I hope, a modicum of dispassion.

A word for non-lawyers. Class actions are brought by an individual plaintiff on behalf of a much larger group of people who claim to be damaged by the same wrong inflicted by the same defendant. They are indispensable to people of modest means whose loss or injury may be significant to them but who, as individuals, cannot afford to sue a powerful and well-funded corporation.

Hamstringing class actions is central to the corporate legal and political agenda. Corporations loathe the expense of defending them, and fear the possibility of large verdicts compensating thousands of individuals for their own alleged wrongdoing. As a matter of self-interest, the likely defendants in such cases want to erase class actions from the legal map. Their bottom line is simple: when it comes to class actions, the alleged victims of wrongdoing should bear the costs -- not the perpetrators.

A peculiarity of this is that, as a class, the patrician legal establishment of corporate lawyers -- of which John Roberts and I were both members -- tend to look on class actions, and the lawyers who bring them, with loathing and contempt. The intensity of this sentiment transcends mere disagreement between adversaries about the law or facts -- it goes bone deep, and one can feel it in the rulings of the Roberts court's conservative justices.

A fair example of how all this plays out is the kind of case I litigated: class-actions brought by stockholders who relied on allegedly fraudulent materials in purchasing shares from a corporation. For a retiree who invested $25,000 in a bogus company, the impact can be severe. But there is simply no way that such people -- who may number in the thousands -- can afford to sue as individuals: the legal fees alone would swallow any recovery.

Their only recourse is through a class action brought by a named plaintiff, represented by a lawyer who fronts the expenses of a lawsuit in exchange for a percentage of any recovery from a verdict or settlement. The lead plaintiff must faithfully represent the interests of the class as a whole -- he cannot dismiss the lawsuit in exchange for a private settlement for his injury alone, and the judge is required to find that any settlement on behalf of the class is in its best interests.

I know from my own experience that class actions are subject to abuse by the lawyers who bring them. I've defended lawsuits where the plaintiffs' lawyers rushed to the courthouse with a bogus boilerplate complaint, so that they could be first in line for a settlement.

In one memorable case, venal lawyers claimed that their inattentive named plaintiffs had been defrauded by a document, with which my client had only a marginal involvement, which did not even exist when they invested. And while opportunistic lawyers like this may enrich themselves from a settlement -- 30 percent of $10 million is, after all, $3 million -- the chances that class members will receive full restitution are slight.

Indeed, the mere filing of a lawsuit may impel a settlement because of the expense and risk of defending it. I once had a lawsuit tossed simply by comparing the charges against my client, word for word, with five identical complaints filed by the same lawyers against different defendants. One of my favorite playmates, a nationally prominent plaintiff's' lawyer, ended up in a federal penitentiary for paying off pet plaintiffs to purchase a few shares of stock in hordes of companies, so that he could later bring lawsuits if a company went south.

If I know all this, so does the Chief Justice. So, on that level, I get it.

But none of this means that class actions cannot be meritorious. I've seen a bunch of cases where the corporation engaged in blatant crookedness -- cooking the books, covering up product failures, concealing corporate disasters which, if known, would discouraged investors from buying.

Without class actions, these victims of fraud would have received no compensation at all. And here, for me, is the clinching point -- class actions are often the only deterrent to a corporation which injures people who can't afford to fight back. All the more so, in fact, in an age where financial malefactors too often avoid prosecution by the government.

Nonetheless, the Roberts court has worked overtime to squelch class-action lawsuits.

One corporate weapon is enforcing arbitration agreements, in which guileless customers give up their right to sue in open court in exchange for submitting individual claims to an arbitrator. Stretching the law a bit, the conservative majority ruled that these agreements are enforceable.

The obvious effect is to bar class actions and make individual plaintiffs undertake the time and expense of appearing before an arbitrator -- in many cases, preventing any recourse at all. And the use of this stratagem is spreading -- as one example, Airbnb now requires customers to waive class actions in numerous areas, including claims of racial discrimination based on flaws in corporate policy.

Another legal weapon of war is to refuse to recognize the right to sue as a class. In one such case, the plaintiff alleged that Comcast, America's largest cable company, conspired with other companies to raise prices in Philadelphia. The conservative majority ruled that 2 million consumers could not band together as a class, and that each cable customer must sue Comcast as individuals -- logically absurd, and economically impossible, a judicial grant of legal immunity.

Here, again, a corporation allegedly profited by cheating millions of people on a scale too modest for them to seek redress on their own. In the world of the Roberts court, this is preferable to calling Comcast to account for deliberately gouging its customers.

Then there's the nuclear option for destroying class actions -- allowing a corporation to compensate a lead plaintiff for his damages, in return for abandoning the claims of the class. So far, a majority of the Supreme Court has rejected this approach -- but not its conservative proponents, Roberts, Scalia and Alito. Here, again, the identity of Scalia's successor is critical. Should the the Roberts position ever become law, it would effectively terminate class actions.

In all these cases, the question is who the law protects -- the individuals who suffered the supposed wrongdoing, or the corporation which inflicted it? The essence of the American legal system is that violations of law can be remedied in court. But not, the court's conservatives believe, if the remedy is to bring a class action.

This is sadly typical. In case after case, the Roberts court has increased the political and legal power of corporations, while cutting down on the remedies for corporate wrongdoing. In this country club view of America, corporations are not just "people" -- they are privileged people, protected by our highest court at the expense of everyone else.

That defies our most important legal traditions. The law exists to resolve disputes in a fair manner, not to immunize one party in a way that frees them to wrong others with impunity. That is not law -- it is class bias rooted in politics. And despite his populist pretense, Donald Trump has pledged to stack this deck for decades to come.

The time to stop this is November.