The Supreme Court as running dog of the capitalist empire: Reflections on the Arbitration Act cases

Sandy Levinson

A sensationalist title, to be sure.  But it is important to recognize that the deepest ideological commitment of the current majority reveals itself not necessarily in constitutional law cases, where Anthony Kennedy, and even on occasion some of the other conservative justices, reveals a willingness to go off on what many of us would regard as "progressive" directions, just as some of the liberal justices, especially Breyer, can be found joining with his conservative colleagues in certain criminal procedure cases.  But it should now be clear that the conservative majority has fully imbibed the notorious memo from Lewis Powell in the earlier '70s arguing that business interests had to devote themselves to capturing control of the legal culture in order to protect themselves from dangerously leftist ideas (including, for Powell, the notion that labor unions really had rights worthy of respect).  The Court has made the Arbitration Act of 1925 into far, far more of a "constitutionalized" statute than it's now willing to do, say, with the Voting Rights Act of 1965, eviscerated in Shelby County by the usual five suspects.  But the Arbitration Act is now given precedence over the later National Labor Relations Act, and it is clear that the majority is totally indifferent to the consequences for ordinary individuals of being effectively unable to seek meaningful legal redress.

During an earlier era, there were many denunciations of the Court as a tool of big business, largely because of its proclivity (which may have been overestimated) to strike down progressive legislation in the name of what was called "substantive due process."  The canonical example include Lochner, but Coppice v. Kansas is another fine example, not least because the Court's opinion in that case, about the (in)ability of Kansas to protect the right of labor to organize, is unabashedly ideological and fully embraces the need for harsh inequality in order to make capitalism work.  And, of course, there was the crabbed reading of Congress's power under the Commerce Clause that doomed the Child Labor Act of 1918 (by one vote), not to mention the spate of decisions by the Five Old Men designed to stave off the New Deal.  Almost no one on the left viewed the Court as a friendly forum.  Its major decisions from the beginning had by and large legitimized the ability of "the interests" to capture state and national government for their purposes; one can, if one wishes, read McCulloch in this manner.  And, of course, it had been a resolute defender of the slavocracy in such decisions as Prigg and Dred Scott (though I'm also willing to argue that these decisions were based on a plausible reading of a Garrisonian Constitution that was indeed a "covenant with death and agreement with Hell").  The so-called Bill of Rights had no effective legal presence prior to the 1940s, and Justice Holmes, I believe in Buck v. Bell, referred to the Equal Protection Clause as the last refuge of a lawyer who had no real legal argument.  Segregation was firmly affixed as the law of the land, save for a few cases that were of little demonstrable import.  And, of course, the Court had proved a hollow hope to the Japanese Americans who objected to exile and detention, see Korematsu.  One could go on and on.

All of this changed, so far as the perception of the Court was concerned, with Brown, together with the creation of the contemporary willingness to take the Bill of Rights seriously.  Earl Warren was the first Chief Justice in American history to be a hero of political liberals.  And then there was Roe (written, of course, by Harry Blackmun, Richard Nixon's appointee).  All of this reinforced the belief that "we" had friends at the Court who would legitimately interpret the law in a progressive direction (with great consequence for the wider society).  Political scientists raised questions both about the validity of the assumptions that judges would necessarily be liberal and about the ability of the judiciary really to transform a society that might be resistant. (This is the importance, in particular, of Gerald Rosenberg's The Hollow Hope.)

The Arbitration Act Cases, though, are wonderful examples, first, of the importance of "high" politics (i.e., business=good, unions=bad) and, contrary to Rosenberg, the ability to use the judiciary indeed to gain one's fondest hopes.  Texas is one of those states that defines liberty in terms of "access to courts" to be able to set out one's claims.  The conservative majority at the Supreme Court, however, is actively hostile to access to courts, which might include access to dreaded jury trials, which are increasingly disappearing in the U.S.  (One could analyze the spate of "standing" decisions, particularly with regard to examining US misconduct in the Iraq war and elsewhere, in these terms.)

In any event, Lewis Powell may be the most important justice of the last half-century,  not because of his "constitutional decisions," which are all over the place--see, e.g., Rodriguez, McCleskey v. Kemp, and, notably, Bakke--but, rather, because of his stunning success in helping to achieve a Supreme Court majority that is truly hostile to the interests of ordinary Americans and willing to lend its formidable hand to almost all efforts to protect the interests of big business against having to be accountable of their behavior to customers or employees.  Evangelicals are thrilled because Gorsuch will protect them against secularists; big business, which I suspect couldn't care less about wedding cakes, is even more thrilled because Gorsuch is a solid vote for unimpeded business power.  "Running dogs of the capitalist empire" is perhaps a bit hyperbolic, but it certainly is more accurate than "neutral umpires simply calling balls and strikes."
Posted 1:33 PM by Sandy Levinson [link]