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Holland writes: "It's the result of years of institutional investments by the corporate Right to advance a reactionary legal regime in America's courts. In the process, the richest Americans now have their hands in both our legislative and judicial branches, while working America has become a voiceless stepping stone."

image: Occupy Wall Street)
image: Occupy Wall Street)

How the 1% Hijacked Our Courts

By Joshua Holland, AlterNet

19 May 12


Occupy Wall Street: Take the Bull by the Horns

or a generation, America's political-economy has been gripped in a vicious cycle. Those at the top of the economic pile have taken an ever-growing share of the nation's income, and then leveraged that haul into ever-greater political power, which they have in turn used to rewrite the rules of "the market" in their favor. Wash, rinse and repeat.

It's the result of years of institutional investments by the corporate Right to advance a reactionary legal regime in America's courts. In the process, the richest Americans now have their hands in both our legislative and judicial branches, while working America has become a voiceless stepping stone.

"The more pernicious effect of economic inequality comes indirectly through its impact on political inequality," says MIT economist Daron Acemoglu, co-author of Why Nations Fail. In an interview with Think Progress, Acemoglu explained what he called, "a general pattern throughout history":

When economic inequality increases, the people who have become economically more powerful will often attempt to use that power in order to gain even more political power. And once they are able to monopolize political power, they will start using that for changing the rules in their favor.

This dynamic is best understood in the realm of electoral politics. In a study of something that most people already consider to be obvious, Larry Bartels, a political scientist at Princeton, examined lawmakers' responsiveness to the interests of various constituents by income, and concluded:

In almost every instance, senators appear to be considerably more responsive to the opinions of affluent constituents than to the opinions of middle-class constituents, while the opinions of constituents in the bottom third of the income distribution have no apparent statistical effect on their senators' roll call votes (PDF).

Or consider ALEC, an organization funded by major corporations that writes laws that, among other things, curtail workers' rights to organize and disenfranchises the poor, elderly and people of color. It then lobbies state lawmakers to pass its "model legislation," and sweetens the deal with junkets - all-expenses-paid vacations at posh hotels for legislators and their families - where they can rub shoulders with the titans of industry.

Look at the fruit that union-busting bears for the wealthiest Americans:

Another way the wealthiest Americans have rigged the rules so more of the national income flows upward may be just as consequential, but less well understood. A 30-year campaign to push America's courts sharply to the right has borne abundant fruit for those in the top 1 percent.

We see it reflected in today's Supreme Court, which, having unleashed a flood of super-PAC cash into our political campaigns in a decision that was one of the most brazen examples of judicial activism in the court's history, now stands poised to overturn not only the Democrats' healthcare bill, but much of the jurisprudence that supported the welfare state developed since the New Deal.

A study by the Constitutional Accountability Center found that the Chamber of Commerce had won 65 percent of its cases heard by the court under Chief Justice John Roberts, compared to 56 percent under former Chief Justice William Rehnquist (1986-2005) and just 43 percent of the cases that came during the Burger court (1969-1986).

But that's only the beginning. "The Roberts Court," wrote Slate's Dahlia Lithwick, is "slowly but surely... giving corporate America a handbook on how to engage in misconduct. In case after case, it seems big companies are being given the playbook on how to win even bigger the next time."

Many of the court's rulings have overturned long-standing precedents. While conservatives constantly rail against judges "legislating from the bench," it is far more common for right-leaning jurists to engage in "judicial activism" than those of a liberal bent. That's what several studies have concluded. Media Matters offered a run-down of a couple of prominent ones:

A 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder showed that among Supreme Court justices at that time, those most frequently labeled "conservative" were among the most frequent practitioners of at least one brand of judicial activism - the tendency to strike down statutes passed by Congress. Those most frequently labeled "liberal" were the least likely to strike down statutes passed by Congress.

A 2007 study published by University of Chicago law professor Thomas J. Miles and Cass R. Sunstein... used a different measurement of judicial activism: the tendency of judges to strike down decisions by federal regulatory agencies. Sunstein and Miles found that by this definition, the Supreme Court's "conservative" justices were the most likely to engage in "judicial activism" while the "liberal" justices were most likely to exercise "judicial restraint."

In a recent opinion, two federal appeals court judges suggested that all efforts to protect workers, consumers or the environment were unconstitutional, including regulatory efforts by the states. It's a radical view, but one that has gotten increasing traction in conservative legal circles. It is also the culmination of years of institutional investments by the corporate Right to advance what's come to be known as the "law and economics" movement, which analyzes legal rulings "costs" - essentially applying neoliberal economic logic to the field. Its advocates eschew the notion that human rights or economic fairness are inherently valuable factors for the law to consider.

The model has gained increasing influence in American courts, and that's no accident. In his book, The Rise of the Conservative Legal Movement: The Battle for Control of the Law, Johns Hopkins scholar Steven Teles writes that conservatives, reacting to what they viewed as liberal hegemony in the legal community of the 1960s, fought hard to shift the legal terrain rightward.

Spurred by their overlapping grievances, informed by an increasingly sophisticated notion of how to produce legal change, and coordinated by strategically shrewd group of patrons, conservatives began investing in a broad range activities designed to reverse their … organizational weaknesses. While similar kinds of organizational development were happening in other domains … in no other area was the process of strategic investment as prolonged, ambitious, complicated and successful as in the law.

In 1998, the Washington Post reported that "Federal judges are attending expenses-paid, five-day seminars on property rights and the environment at resorts in Montana, sessions underwritten by conservative foundations that are also funding a wave of litigation on those issues in the federal courts."

Funding for the seminars, run by a group called the Foundation for Research on Economics and the Environment (FREE), also comes from foundations run by companies with a significant interest in property rights and environmental law issues.

One of the group's funders was the John M. Olin Foundation, which invested millions of dollars in the law and economic movement - endowing university chairs, funding think-tanks and providing early support for the Federalist Society, which was founded in 1982 by former attorney general Ed Meese, controversial Supreme Court nominee Robert Bork and Ted Olsen - who years later would win the infamous Bush v. Gore case before the Supreme Court in 2000 and then go on to serve as Bush's solicitor general. The foundation said in a 2003 report to its trustees, "All in all, the Federalist Society has been one of the best investments the foundation ever made."

In 2005, the Olin Foundation actually declared "mission accomplished" and closed up shop. The New York Times reported that after "three decades financing the intellectual rise of the right," the foundation's services were no longer needed. The Times added that the loss of Olin wasn't terribly troubling for the movement, because whereas "a generation ago just three or four major foundations operated on the Right, today's conservatism has no shortage of institutions, donors or brio."

If the economics and law movement were to become the standard in our legal culture, it would represent a massive upward redistribution of wealth. Not only would "transfer payments" - unemployment benefits, assistance for needy families and the like - be deemed unconstitutional, but so would minimum wages, job training programs, subsidized student loans and most of our already threadbare social safety net. And that environment will have been purchased for a princely sum by those who have profited so handsomely from America's spiraling income inequality. your social media marketing partner


A note of caution regarding our comment sections:

For months a stream of media reports have warned of coordinated propaganda efforts targeting political websites based in the U.S., particularly in the run-up to the 2016 presidential election.

We too were alarmed at the patterns we were, and still are, seeing. It is clear that the provocateurs are far more savvy, disciplined, and purposeful than anything we have ever experienced before.

It is also clear that we still have elements of the same activity in our article discussion forums at this time.

We have hosted and encouraged reader expression since the turn of the century. The comments of our readers are the most vibrant, best-used interactive feature at Reader Supported News. Accordingly, we are strongly resistant to interrupting those services.

It is, however, important to note that in all likelihood hardened operatives are attempting to shape the dialog our community seeks to engage in.

Adapt and overcome.

Marc Ash
Founder, Reader Supported News

+12 # Peacedragon 2012-05-19 16:45
Is this evenings RSN completly depressing?
+26 # 8myveggies 2012-05-19 18:18
This article inspired me to look up the oath that supreme court justices take:

According to Title 28, Chapter I, Part 453 of the United States Code, each Supreme Court Justice takes the following oath:

"I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God."

God help us all.
+4 # John Locke 2012-05-20 07:20
Oaths don't mean anything any longer and haven't for decades, the Skull and Bonesmen take a blood oath to the cult and it supersedes all other oaths. Obama gave an oath also but then has sided with the banks against us, and had attempted to eliminate the 1st, 4th, 5th, and 6th amendments to the constitution when he "Required: in the NDAA the provision allowing for indefinite detention of American Citizens, and when he further made it a felony to protest near government buildings...

They take a real oath to money! It becomes their god!

When you know that attorneys are by en large incompetent and dishonest, (75 to 90%) what would you expect of a government attorney, and why would we expect anything less from a attorney nominated to the supreme court by either administration! Clarence Thomas is just an obvious example if you recall he was appointed over serious allegations and evidence of sexual harassment by Anita Hill. Hill wasn’t alone there was also Angela Wright who gave similar testimony in an affidavit and also to a limited extent Sukari Hardnett. Since then he has been openly corrupt…
+3 # giraffee2012 2012-05-20 12:25
Occupy the Supreme Court building (room) and each of their homes - but don't get arrested. Carry a banner with their "OATH"? Why can't I marry a corporation if it is a person (maybe a smaller example)

Vote Dem/ Obama or the ratio of RATS to dems will go higher (R)oberts, (A)liota, (T)homas, (S)calia (the last 2 are the BIGGEST RATS)
+17 # pernsey 2012-05-19 19:12
Corporations are not people...the middle class are!
+6 # John Locke 2012-05-20 07:21
Maybe we should incorporate the middle class!
+1 # 8myveggies 2012-05-20 17:19
I like that idea!
+1 # Granny Weatherwax 2012-05-20 10:53
The proletariat as well, as are the 1%.
the principle is one person 1 vote.
+22 # freeportguy 2012-05-19 22:18
I guess it's true that most things are cyclical. We slowly and painfully went from "the law of the jungle" to a society of greater equality in the 70's, and from then on we've been slowly going back to the "law of the jungle" mode.

While I understand the wealthy for always trying to get their way, I'm appalled that the Courts so enthusiasticall y get on board with them, and so does Joe Public.

We better brace ourselves for some rough tImes.
+12 # lexy677 2012-05-19 23:59
If you have ever voted for a republican president anytime since Nixon, you are part of the problem; you have helped start America down the path of destruction. People like Reagan should be universally villified and not have airports named after him.
+5 # reiverpacific 2012-05-20 09:38
The word "Legal", no longer has any true connotation in the Fragmented States, especially since the Dimwits-nominat ed, Roberts-led Gang of Five took the reins to reign and declaim from on high on behalf of the already wealthy and powerful and the likes of Opus Dei, to which at least two of the most despicable and corrupt are pledged.
"Contempt of court" has also taken on a heavier and more appropriate context, innit?!
+3 # Granny Weatherwax 2012-05-20 10:54
"Legal" now barely means that it matches the outcome of the legal process.
What it most emphatically does not mean is just or moral.
+1 # pernsey 2012-05-20 12:21
The laws now, only apply to poor people.
+5 # stoher9 2012-05-20 12:09
The conservative movement in America has succeeded in returning us to the golden days of The Gilded Age. 1890-1929 A time when corporate America in the form of the coal, steel & railroad monopolies ruled the states, the Congress & the courts. It took a progressive uprising from farmers, labor & the middle class to reign in this plutocracy with the help of The Great Depression. We need to rise up again & take control of our Democracy. The plutocrats have learned from the past & are trying to defeat our greater numbers by restricting voter rights through ALEC type laws, anti-terrorism laws & the criminalization of more ordinary American activities which not only restrict voting rights, but enriches Americas vast privatized prison industry.We may only have this election cycle to turn things around before the conservative rich shut down once & for all this great experiment that is America.
+8 # geraldom 2012-05-20 12:17
I'm a nobody, just one of 300 million Americans crying out in the wilderness, & yet I knew, beyond the shadow of any doubt, from even before G.W. stole the 2000 pres election, when he was still candidate Bush, what his agenda was. It was clear as day for anyone that had a brain & some common sense.

I knew that he was going to destroy our environment by supporting the energy companies over that of the environmentalis ts. I knew that he was going to go after abortion rights, pro-choice, & I knew that he was going to go after gay rights. I knew very little of his foreign policy agenda & there was no way that I could have predicted that he would authorize the events of 9/11. Based on the physical & visual evidence available on film & photos, I know, beyond the shadow of any doubt, that 9/11 was perpetrated by the Bush admin & not by 19 hijackers with boxcutters. It was a false-flag event, pure & simple, in order to gain the support of Americans who chose to act like ostriches, to act in a naive & foolish manner to believe virtually everything that the Bush admin told them in order for the Bush admin to justify everything that they did to destroy our Democracy in this country.

Bush's topnotch goal in all of this, in order to cement all of these damaging changes, was to destroy our federal court system with his crony judges, & the Dems supported him all the way on this by approving most of these judges, especially John Roberts & Samuel Alito.
+7 # The Ice Maiden 2012-05-20 13:05
The first time it really hit me, as an attorney, that the powers-that-be were more political than patriotic, was when the five Republican US Supreme Court justices put George W Bush, Jr into the White House. Our laws required irreparable harm before the court had the right to intervene, but they acted without it. One step at a time, we're turning into the world the first Americans sought to escape. Wealth should not determine law.
+2 # geraldom 2012-05-20 16:34
Quoting The Ice Maiden:
The first time it really hit me, as an attorney, that the powers-that-be were more political than patriotic, was when the five Republican US Supreme Court justices put George W Bush, Jr into the White House. Our laws required irreparable harm before the court had the right to intervene, but they acted without it. One step at a time, we're turning into the world the first Americans sought to escape. Wealth should not determine law.

What SCOTUS did at the time was unconstitutiona l, illegal. If the matter at hand was the opposite situation where votes were illegally being suppressed by the state of Fla, I could understand SCOTUS getting involved, but the matter at hand involved the Repubs effort to use SCOTUS to actually & illegally suppress votes that the Fla State Supreme Court decided shouldn't be suppressed.

It was a states rights issue where the state, via the correct decision by the Fla Supreme Court, was attempting to do the right thing & count every valid vote that they could. I commend Al Gore for fighting it all the way to the Supreme Court, but I condemn Al Gore as I've condemned the Dems since the 2000 debacle for caving in to the Repub agenda.

There were Congressional Dems at the time who wanted to challenge, not only SCOTUS's illegal decision, but their right to even make it, but not one Dem Senator would come forward to support the move & Al Gore gave up right after SCOTUS's decision.
+5 # Chuck H. 2012-05-21 00:41
Unfotunately five of the Supreme Court Justices want to intrpret the Constitution by their personal beliefs. Unfortunately, I am one of many in this country that has no confidence in the Supreme Court at present.
+1 # wilma 2012-05-25 10:39
It is my belief that as part of the 99%, if the 1% really had its way (as surely they will if things keep digressing) we will be worse than slaves in the literal sence, but will become serfs/peasants without the buffer of any middle class.
I never even dreamed that anything remotely like that would happen, but now that I am older, have been watching and reading the current events as well as having a renewed interest in history, I certainly fear the worst.


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