Tuesday, May 22, 2018

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."


Nothing in the NLRA reverses the Arbitration Act and, until the radical Obama board, no NLRB for three quarters of a century attempted to rewrite the NLRA to do so.

This simple case should have been a 9-0 decision with an observation that legislation is Congress’s job.

SPAM's use of the word "simple" exemplifies his simplemindedness on what is fair and jus. The blindfold on Lady Justice serves to shield the eyes of the conservative Justices from the masses of Americans impacted by this decision, Americans lacking the bargaining power to refuse to accept such unconscionable provisions in employment and other agreements.

Regarding Sandy's title to this post, it should be recognized that a "capitalist empire" is not necessarily a democracy. Many, perhaps most, Americans lack the capital needed for sufficient bargaining power to challenge agreeing to such provisions.

By the Bybee [expletives deleted, despite Gina], Lewis Powell expressed those views before he became a Justice. As a lawyer, he represented businesses. Powell put his twist on Calvin Coolidge's famous remarks on the role of business in America. Now Pres. Trump has taken Article II's "take care" clause to include his own Trump Enterprises.

And I share Sandy's concerns with the Revengelicals (FKA Evangelicals) being "thrilled" by the addition of Justice Gorsuch) to the Court.

Filibustered Obama judicial nominee Victoria Nourse did argue in "A Tale of Two Lochners" that the Supreme Court in the "Lochner Era" overall used their judicial review power narrowly, excepting certain economic cases that get/got a lot of attention.

The Bill of Rights ("so-called" might be a reference to a new book by a co-blogger here, GM?) did have a bit of bite in the 1930s (e.g., Near v. Minnesota; Scottsboro Cases). Heck, even the lower courts pre-Buck v. Bell repeatedly struck down or limited eugenics laws. The courts did expand its use of judicial review in civil liberty cases post-New Deal though.

Jack Balkin has noted that the judicial nomination process provides a limited democratic check that helps develop the law. Prof. Lain on Twitter recently referenced an article she wrote that argues as well that sometimes the courts protects majority will:

But, the system is skewered some, including in ways Sandy Levinson has strongly criticized, to promote a certain minority control. Checks of the majority in various ways is good. Other times, less so. Anyway, the process in place [after a different approach in the FDR-LBJ days] has brought a Supreme Court that views the law in a conservative business sense in various respects. Thus, arbitration cases with 5-4 judgments.

Judges are a result of a political process. There is a reason not to like its outputs these days. A lot of sand has been thrown in the works too.

I think you're giving Powell too much credit/blame here. Sure, he created the blueprint, but the proximate cause of the current majority is (a) McConnell's willingness to play constitutional hardball; and (b) the EC. Longer term, we might blame the EC for Roberts and Alito too, though that's less clear.

It's certainly clear, though, that liberals have placed less emphasis on the Court than they should have been doing for the past 25 years. And many who call themselves "leftists" treat it as unimportant. Those have to change, if we are ever to recover the Republic.

I question Mark's "certainly clear" in the closing paragraph of his comment. In any event, the Constitution does not specifically provide for judicial supremacy over the elective federal branches.

The lower courts changed over the years but it is striking that the last time a majority of justices were appointed by a Democratic President was around 50 years ago.

The center of the Court in the 1970s to 1990s was more in flux with multiple justices on various issues joining the liberals. It's more obvious now. Justice Garland would have balanced things. Bush41 appointing Souter, who reflected New England Republicanism of the early Bush sort helped temper things and Kennedy did as well. Control of the Senate matters though even if the Democrats were able to vote down Alito, somewhat unlikely a more moderate Republican pick would have been forced since it wasn't the same "perfect storm" Bork was.

The courts were a strong concern of many Trump voters. (One poll had it as a 30% importance thing.) Meanwhile, some whined that Garland -- a Breyer trade-off for Scalia -- was too white-bread or something. FWIW, Senate Democrats have shown some spine on judicial nominations though they have limited power. And, no, net I think ending the filibuster was appropriate in that case, especially given the whole story at the time.

Ages of the current Justices when appointed:

Roberts 40; Kennedy 51; Thomas 43; Alito 55; Gorsuch 49.

Ginsburg 60; Breyer 56; Sotomayor 55; Kagan 50.

And that's not counting the fact that Ginsburg was a cancer survivor, Sotomayor has Type 1 diabetes, and Kagan is a smoker. In addition, the "liberal" justices are much less liberal than 4 of the 5 conservatives are conservative.

The Constitution does not provide age provisions in Article III and provides lifetime appointments subject to few challenges. People are living longer, including members of the Court. Perhaps Justices don't retire to the same extent as in the past. Were Democrats derelict in appointing older, perhaps unhealthier persons to the Court? I don't know if that case can be made. As to the less liberal, more conservative, perhaps that comes with the numbers and might reverse if liberals were in the majority. The goal is to get to 5. Justices can change over time, as with Souter and Blackmun. The past 25 years have seen accelerating political dysfunction and major changes in Senate rules on judicial confirmations. Perhaps the situation is the luck of the draw as well as longevity of some Justices.

Off specific topic but perhaps relevant to the current political environment is this NYTimes article I just read at its website:

"As Population Growth Slows, Populism Surges" By Philip Auerswald and Joon Yun

focusing on fertility declines not only here, but in many countries, resulting in the drift between rural and urban politically, with resulting populism. The article includes an interesting paragraph on recognition of this issue a few years back in Russia by Putin. Scary.


Roberts was 50.

Longer life spans is an additional reason why limited terms might be a good idea for at least Supreme Court justices and 18 years might be a good idea. There has been some argument made that this doesn't require a constitutional amendment since you can give life tenure to a federal judge without necessarily it being all for one position.

So, e.g., David Souter resigned from SCOTUS, but still served as a court of appeals judge. A justice can also finish an eighteen year term and be active to fill in vacancies in case of recusal. "Good behavior" particularly is a guard against political interference. Independence would still exist with such limited terms. The necessity of a fully open-ended tenure on one panel is unclear. An open set of judges randomly assigned to circuits that need a vacancy, a sort of roving temp, seems constitutional.

"Independence would still exist with such limited terms. "

Only if they were either automatic, or at the choice of the judge himself. If it were discretionary on the part of anybody else, not so much.

And applying even a newly instituted automatic reassignment in the case of existing Supreme court Justices could be just a means of court packing; Such a change would have to be scheduled far enough out nobody would know the political impact.

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Only if they were either automatic, or at the choice of the judge himself. If it were discretionary on the part of anybody else, not so much.

I'm not sure what "discretionary" means here.

Congress would have the choice to set forth a new rule -- now there isn't such a rule, but via its power over the courts [e.g., the number of justices or how many are required for a quorum], they can choose, have discretion, to set up a new automatic rule. It wouldn't only apply to disfavored nominees, if that is the concern.

applying even a newly instituted automatic reassignment in the case of existing Supreme court Justices could be just a means of court packing

I think the rule would apply prospectively to new nominees. The justices were appointed with the understanding they would fit into the current system. Of course, there is a power to "court pack" -- e.g., expand the number of justices. But, that isn't the idea here.

It simply is, as applied to all justices let's say, to have a fixed term of full active service on the Supreme Court. Judges still will serve by good behavior. Specifics are flexible. The original Supreme Court, e.g., rode circuit. This significantly affected things, including wear and tear that affected length of terms and who was on the job.

Reading the decision and commentaries as a layperson, not a lawyer, I can't help but feel that the pro-employer advocates have the better statutory interpretation arguments here, even though the pro-worker advocates have the better public policy arguments. Which leads me to wonder whether it's the Supreme Court that is running dog, or the U.S. Constitution itself. Isn't there a very good explanation of this decision implicit in KLarman's "The Framers Coup"?


Excluding slavery, the Constitution of 1787 (including the bill of rights) seems neutral vis-a-vis employers and workers. But perhaps some of the "principles" of slavery are reflected in decisions of the conservative wing of SCOTUS.

Back in 1787, agriculture engaged many of the populace, usually family farms, except for the slaveowners' plantations. This was pre-industrial revolution. Other than such plantations, what constituted big business as we have today back then?

Bob Richard's comment is a mix curious.

If the Court decided things statutorily the right way, what exactly is the issue? Is it that there is an assumed problem regarding why the law hasn't been changed by Congress yet? There are various reasons why something that is "pro-worker" wouldn't pass Congress. And, since the specific thread of cases involved here are pretty recent, it is even more understandable.

I don't know why it "can't be helped" that the pro-employer side is correct, but a 5-4 case makes it fairly unsurprising that people can be found for both sides of the argument. Maybe it again boils down to that there are debatable issues here and who controls the government and gets to pick the justices is the deciding factor.

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