Rise of the Corporate Court: How the Supreme Court is Putting Businesses First | People For the American Way

Rise of the Corporate Court: How the Supreme Court is Putting Businesses First | People For the American Way

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What is striking today, however, is how often the Roberts Court, like its predecessor the Rehnquist Court, hands down counter-intuitive 5-4 victories to corporations by ignoring clear precedents, twisting statutory language and distorting legislative intent. From labor and workplace law to environmental law, from consumer regulation to tort law and the all-important election law, the conservative-tilting Court has reached out to enshrine and elevate the power of business corporations --what some people have begun to call "corporate Americans"--over the rights of the old-fashioned human beings called citizens.

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This was the working assumption of not only progressive justices but deeply conservative ones who were faithful to the text of the Constitution and not under the spell of corporate power. Chief Justice John Marshall, the great hero of prior generations of judicial conservatives, wrote in the Dartmouth College21 case that: "A corporation is an artificial being, invisible, intangible and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it . . ."22

In our time, Justice Byron White pointed out that we endow private corporations with all kinds of legal benefits—"limited liability, perpetual life, and the accumulation, distribution and taxation of assets"—in order to "strengthen the economy generally." But a corporation thus endowed by the state is placed "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." The state, he argued, has a compelling interest in "preventing institutions which have been permitted to amass wealth as a result of special advantages extended by the State for certain economic purposes from using that wealth to acquire an unfair advantage in the political process. . ."23

Justice White then delivered the key principle that ought to control our constitutional understanding of the corporation's political ambitions: "The state need not permit its own creation to consume it."

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Rehnquist embraced Chief Justice Marshall's statement that a "corporation is an artificial being, invisible, intangible, and existing only in contemplation of law," and aggressively questioned theories of the "personhood" of the corporation. He wrote that he could not see why "liberties of political expression" are "necessary to effectuate the purposes for which States permit commercial corporations to exist. . . . Indeed, the States might reasonably fear that the corporation would use its economic power to obtain further benefits beyond those already bestowed."26