THE CORPORATE SUPREME COURT

Here’s issue #18 of my Policy and Politics Newsletter, written 2/5/12. Recent issues have looked at the Supreme Court’s Citizens United decision that gives corporations freedom of speech rights to spend unlimited amounts of money in our elections. This issue takes a look at some other Supreme Court decisions that also favor corporations.

In addition to Citizens United, the Supreme Court has made a number of decisions that appear to indicate a strong slant in favor of corporations. Typically, these rulings have been decided by a 5 – 4 vote with the “conservative” bloc prevailing. It’s interesting to note, that while the “conservative” bloc describes itself as strictly interpreting the Constitution and adhering to its intent, corporations are not mentioned in the Constitution and, at the time, were entities chartered by state governments, generally for specific and limited purposes, and subject to state laws. [1]

Here are other examples of the Court’s pro-corporate decisions: [2]

• After 20 years of litigation on the Exxon Valdez oil spill inAlaska, the Supreme Court reduced the punitive damages awarded by the trial court from $5 billion to $507.5 million. This is a slap on the wrist (less than 1.5% of annual profits) for a company that has averaged $36 billion a year in profits over the last 7 years.
• In Sorrell vs. IMS Health, Inc. in 2011, the Court declared Vermont’s Prescription Confidentiality Law unconstitutional because it required a physician’s consent before his or her history of prescribing drugs could be sold by pharmacies and health insurers to pharmaceutical companies. The Court ruled that the state’s attempt to protect this information illegally discriminated against the pharmaceutical companies’ free speech rights – namely their ability to use this information in marketing and advertising “speech”. The supposedly conservative, states’ rights Court, ruled that federal law and Courts supersede state law and a physician’s individual right to privacy. [3]

Disallowing class action lawsuits against corporations on behalf of consumers and workers has been a recurring theme in this Supreme Court. [4]

• In AT&T Mobility LLC vs.Concepcionin 2011, the Supreme Court overruled federal courts inCaliforniaand a number of state Supreme Courts. The lower courts had ruled that a consumer contract that prohibited class action lawsuits and required arbitration was unconscionable and therefore unenforceable. The US Supreme Court ruled that federal law preempted state law and that the contracts were valid and enforceable.
• In Wal-Mart Stores, Inc. vs. Dukes in 2011, the Supreme Court invalidated the class action suit of 1.5 million women who contended that they had suffered sexual discrimination in pay and promotions at Wal-Mart. The Court concluded they were not a “class” eligible to file a class action lawsuit because they did not all have the same supervisor and that a class action lawsuit cannot be brought against a corporate policy or practice, but only against an individual supervisor.

In other cases, the Court has ignored precedents in ruling against injured workers, whistleblowers, and shareholders. In Ledbetter vs. Goodyear Tire & Rubber Co. in 2007, the Court ruled that employers cannot be sued for race or gender pay discrimination if the claims are based on decisions made by the employer more than 180 days ago. In this case, Lilly Ledbetter learned after years of employment that she had been paid less than male workers but was denied her ability to sue because she had not brought the suit within 180 days of when her employer first discriminated against her, obviously without her knowledge. [5]

The dissenting opinions from the other justices on the Supreme Court often clearly underscore the five “conservative” justices’ – Roberts, Scalia, Thomas, Alito, and Kennedy – departure from precedents and the contortions of their legal reasoning. In the Citizens United decision, the Court went out of its way to find a way to make its broad ruling on corporate freedom of speech and political spending, rather than focusing on the issues of the much narrower case that was presented to it. Previous conservative Justices Rehnquist and Byron White have made statements that quite clearly indicate they would have disagreed with the Court’s decision in Citizens United. White, for example, wrote in an earlier case that corporations are “in a position to control vast amounts of economic power which may, if not regulated, dominate not only the economy but also the very heart of our democracy, the electoral process.” [6]

The decisions highlighted here, among others, reveal the dramatic judicial activism of these five justices. Rather than being driven by the merits of each case, precedents, and the intent of lawmakers, their decisions involving corporations appear ideological and results-oriented, with a clear intent to benefit corporations, while being hostile to government laws, rules, and regulations on corporate behavior.