The nomination of Judge Sotomayor by President Obama cast in sharp relief the issue of whether Supreme Court judges should - or, in fact, do - allow their own cultural experiences or ideological perspectives to influence judicial decision-making. This paper argues that there is evidence that, in the four decades before her nomination, a majority of the justices in the Berger, Rehnquist and Roberts Courts have not hesitated to draw upon their own ideological predilections to shape federal jurisprudence.
In his Two Treatises Of Civil Government, the English political philosopher, John Locke, argued for limited government. Locke asserted. "The great and chief end, therefore, of men uniting into commonwealths, and putting themselves under government, is the preservation of their property..." To what extent have the justices of the Supreme Court adopted and endorsed Locke's views concerning the centrality of private property and the need for limited government?
Since the 1970s, the federal judiciary has expressed pronounced hostility toward government regulation, civil rights, and legislation in the public interest. The net effect of this jurisprudence has been to empower the owners of property - corporations and those who already exercise disproportionate influence in our political system - while ratifying the status quo. In fact, a majority of the Supreme Court judges have not hesitated to impose their personal political preferences for free-market, anti-regulation policies through the judicial feat of federal pre-emption of state laws and regulations to the contrary.
Over the past forty years, numerous state statutes which were enacted to benefit corporations have been held by the Supreme Court to preempt more favorable state consumer protection statutes and state labor laws. § 301 of the Labor Management-Relations Act, 29 U.S.C. § 185(a); the Employee Retirement Income Security Act of 1974, ERISA, 29 U.S.C. § 1001-et seq.; the federal Aviation Administration Authorization Act of 1994, 49 U.S.C. § 11501(h); and 49 U.S.C. § § 41723(b)(4) are examples of federal legislation which courts have held preempt many state statutory provisions to the contrary, even when the state statutes in question have been intended to confer greater legal protection to individual citizens or groups of citizens or to protect against corporate abuses.
In point of fact, many of the laws and regulations pre-empted by decisions of the Supreme Court were designed by state legislatures to protect the rights of workers and consumers. In 1978, for example, in Marquette National Bank of Minneapolis v. First of Omaha Service Corp., 439 U.S. 299 (1978);, the U.S. Supreme Court declared state usury laws to be unavailing against credit card companies engaged in interstate commerce. The effect of that decision was to permit credit-card companies to exact whatever interest rates they wanted, to the detriment of ordinary Americans.
As a result the Supreme Court's jurisprudence, corporations in the United States are now the beneficiaries of a legal status which makes them superior to all other citizens. As non-natural "legal persons," they have standing to sue and to be sued. Unless a corporation is dissolved, either voluntarily by actions of its shareholders or involuntarily by state regulatory authorities, the corporation is virtually immortal. Further, unlike ordinary human citizens, corporations - as non-natural legal persons - can never be imprisoned for their misdeeds. In addition, corporations, by virtue of their political influence, since the latter part of the nineteenth century, have been granted the equal protection of the laws.
This right was granted decades before the same civil rights were accorded to black Americans in the Southern States. In Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886), held that corporations were persons within the meaning of the Fourteenth Amendment, was introduced into the report of the decision by the case law reporter, as a footnote, and it appears nowhere in the text of the decision.
According to the observers, Justice Waite simply pronounced from the bench, sua sponte, before the beginning of argument that "This court does to wish to hear argument on the question whether the provision of the Fourteenth Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the law, applies to these corporations. We are of the opinion that it does."
Thereafter, the Court reporter duly entered into the summary record of the Court's findings that "The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the United States, which forbids a state to deny to any person within its jurisdiction the equal protection of the law." The Santa Clara County decision was especially perverse in that the Waite Court was generally hostile to all claims for the enforcement of equal rights claims of the those recently freed slaves, as guaranteed by the Fourteenth Amendment, and would ten years later decide the infamous case of Plessy v. Ferguson, 163 U.S. 537 (1896). Thus, the protection of property rights was held to be more vital than the protection of living human beings.
A century later, in 1976, the U.S. Supreme Court's decision in the matter of Buckley v. Valeo, 424 U.S. 1 (1976), upheld some modest limits imposed by the U.S. Congress upon individual campaign contributions. More importantly, however, the court held that the campaign contributions by corporations and other large entities were protected by the U.S. Constitution. Congressional attempts to impose restrictions on the financial contributions by corporations and other organizations, because they conflicted with First Amendment guarantees of free speech, would, henceforth, invite strict scrutiny by the court and would require that a compelling state interest had to be shown to pass judicial muster.
Thirty-four years after the Buckley decision, an even more business-friendly court declared that any restrictions upon campaign financing by corporations violate the free speech provision of the First Amendment. In the matter of Citizens United v. Federal Elections Commission, 558 U.S.___(2010), Justice Kennedy, writing for the majority in a 5-4 decision, reversed two previous precedents which had upheld modest campaign finance regulations. See McConnell v. Federal Election Comm'n, 540 U. S. 93, 203-209 (2003) and Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990). Chief Justice Roberts joined in this decision, notwithstanding his comments before the Senate judiciary Committee at the time of his nomination by President Bush, in which he asserted to have great reverence for the doctrine of stare decisis.
Justice Kennedy opined that the Court had previously recognized that the First Amendment's protection extended to corporations and that "Under the rationale of these precedents cited, political speech does not lose First Amendment protection 'simply because its source is a corporation;'" further "corporations and other associations, like individuals, contribute to the 'discussion, debate, and the dissemination of information and ideas' that the First Amendment seeks to foster," quoting Bank of Boston v. Bellotti, 435 U. S. 765 at 783 (1977).
By its decisions in Buckley v. Valeo and Citizens United, the Supreme Court emphasized the ideological commitment of a majority of its justices to Locke's ideological belief that the primary purpose of government is to protect private property in all of its manifestations. Henceforth, non-natural entities - which can only speak through human surrogates - will enjoy a constitutional right to spend unlimited sums of money to influence political elections at the federal and state level.
This right also raises an equal protection issue since, by way of contrast, ordinary, mortal citizens are still limited under federal law to a ceiling of $2400.00 per candidate or PAC for federal elections and $5,000.00 at the state level. 2 U.S.C. § 431-et seq . As a result of these two decisions, the voices of ordinary citizens and their ability to be heard have been reduced to an almost inaudible whisper in the "marketplace of ideas."
The word "corporation" does not appear anywhere within the text of the U.S. Constitution. Despite their professed commitment to the doctrine of "original intent," invocations to the First and Tenth Amendments, and pious cant about the "rule of law," the existing record shows that the primary objective of the current Supreme Court's majority is to curtail, whenever possible, government regulation in the public interest and to empower private actors. In that respect alone, the five justices who compose the Court's majority share an ideological commitment to Locke's 17th century philosophy of individualism and limited government.
In Lochner v, New York, 198 U.S. 45 (1905), Justice Holmes chided a previous Supreme Court for its ideologically-driven judicial activism; he observed that "the 14th Amendment has not enacted Herbert Spencer's Social Statics..." The question which now needs to be asked is whether five, unelected judges who enjoy life-tenure should be permitted to exercise an ideological veto over this country's political institutions and to thwart the ability of democratically-elected leaders to fashion policies, based perhaps upon a different political theory, that are calculated to address paramount economic and social needs when those policies contradict their worldview?
