Never have I urged impeachment of Supreme Court
justices.
I do so now, for the sake of ending the Supreme
Court's
corporate-judicial dictatorship that is not
accountable
under our system of checks and balance in any other
way.
Lady Justice isn't blindfolded and her scales aren't
balanced.
Neither is the U.S. Supreme Court (SCOTUS hereafter) a separate or
equal branch of the federal government as originally intended. How
on earth could it be? It's not separate because its members are
appointed by one of the other branches and confirmed by the third.
And as "the court of last resort" it's not equal in preempting the
other two in its verdicts rather than submitting them to the "rule
of three" or to a citizen's tribunal for a final
verdict.
Even if SCOTUS were truly an equal partner it's ludicrous to think
that when its members don their black robes they become impartial
judges separated from their own "street-dress" biases formed over
the years as members of the propertied and privileged class of
society; biases, moreover, known or assumed by and played to in
arguments made by well-paid corporate lawyers. SCOTUS, in other
words, is anything but a sacred institution or paragon of real
justice. It is nothing more than nine very fallible human beings
handing down very partial, imbalanced verdicts with eyes wide
open.
And Mr. Nader, while I agree with you, impeachment has no more
chance of happening than does a host of judicial reform initiatives
succeeding such as implementing a rule of three or replacing SCOTUS
with a citizen's tribunal.
This article reviews some landmark verdicts of injustice favoring
Corporate America, recounts the true story of a "tobacco road
lawyer" who got to wear the big robe and revived the then moribund
corpocracy, and ends by spotlighting verdicts favoring the
"perilous" industries.
Chief Justice Morrison Waite's 1886 "Wink"
Chief Justice John Roberts and his court will forever be remembered
as having sealed the deal on selling public office by granting
corporations "personhood" in its 2010 verdict (Citizens United v
FEC). Bizarrely, this issue had arisen more than 100 years earlier
in the High Court and was "settled" without a vote. I call it the
Santa Clara Caper. I can't imagine any member of SCOTUS thereafter
not knowing the details of that case.
The Santa Clara Caper
What Roberts accomplished with that verdict Chief Justice Morrison
Waite and his court recorder had already done with a wink I think
in the landmark 1886 case of the Southern Pacific Railroad Company
versus Santa Clara County, California. Railroads, the most
powerful corporations of that time, contrived with the help of
their lawyers to create and spread the erroneous belief that the
14th Amendment gave corporations the same
protective rights as persons, sued the small county that was
attempting to impose a special tax on the railroad company, and
used that Amendment for its argument. What transpired when the case
reached Chief Waite's Court has become a storied part of judicial
folklore and intrigue.
Waite, an advocate of corporate rights, firmly believed the 14th
Amendment intended for corporations to be treated as persons, but
apparently wanting to avoid setting a precedent did not let that
particular issue get formally deliberated at the bench, instead
brushing it off by telling the justices in an offhand comment that
"The court does not wish to hear argument on the question whether
the provision in the 14th Amendment...applies to these
corporations. We are all of the opinion that it does."
What Waite did after the Court adjourned is the intriguing part of
the story. Presumably aware of the court recorder's significant
railroad interests, and probably with an encouraging wink, Waite
let the recorder decide whether to insert the comment into the
record. It got inserted. [2] It amounted to a "High Crime of the
Highly Corporatized Highest Court." SCOTUS has upheld that
distinction ever since in favoring corporate over public interests
as we shall continue to see.
Legacy of the Tobacco Road Lawyer
Corporate America, which had become unusually moribund around the
1960s got a wake-up call in 1971 from a most unusual source. Lewis
F. Powell was at the time a successful tobacco industry lawyer who
specialized in securities laws and who had also been president of
the American Bar Association. A staunch advocate of keeping
government out of the affairs of business he had become alarmed
over what he perceived to be a pervasive assault on the free
enterprise system from the gamut of public institutions and the
liberal elements of the public itself. Big business, he
fretted, was taking the assault lying down.
So, as Chair of the Education Committee of the U.S. Chamber of
Commerce, he wrote a memorandum, eventually dubbed Powell's
"manifesto," to that organization proposing that it lead a
counterattack. [3] Business, he wrote, was "ill-equipped to conduct
guerrilla warfare with those who propagandize against the system,
seeking insidiously and constantly to sabotage it" and "have shown
little stomach for hard-nose contest with their critics." He went
on to lay out what amounted to a "battle plan," apparently to help
business conduct "guerilla warfare."
He suggested numerous strategies targeting four major American
institutions: education, the media, the political arena, and the
courts. The strategies were all very aggressive. A few on paper at
least seem militant and even paranoid and Orwellian in nature, to
wit: It is "a long road and not for the fainthearted." "There
should be no hesitation to attack [those] who openly seek
destruction of the system." "There must be "constant surveillance
of textbooks" and "monitoring of national television networks."
Does that read like it's coming right out of some Orwellian
pages?
This rabid free-enterprise ideologue and corporate lawyer would
become just a few months after firing off his manifesto a justice
of the U.S. Supreme Court presided over by Chief Justice Warren
Burger. Just think of that, a person like Powell, who was an
influential corporate lawyer and sat on numerous corporate boards,
taking a seat on the bench of the land's highest (or is it the
lowest?) court. Particularly foreboding and foretelling was the
aggressive stance he took in his manifesto toward the courts; to
wit: "the judiciary may be the most important instrument for
social, economic, and political change."
Now, SCOTUS is absolutely not the place for social, economic, and
political activist justices. It is the place for, if not "robed
impartiality," at least for honesty and transparency. The Senate
Judiciary Committee apparently did not know about the manifesto,
which was made public after the confirmation hearings were over.
Nor did the Committee probe Powell sufficiently. Powell was remiss
in not sharing with the Committee either the manifesto or his views
expressed in it. Powell acknowledged years later to his biographer
that he did not expect to be confirmed because of his close links
to business (that was certainly putting it mildly). [4]
His manifesto has rightly been called a "remarkable document,
forming the seminal plan for one of the most successful political
counterattacks in American history."[5] It triggered a tacit
conspiracy of new conservative think tanks, conservatively activist
legal centers and an awakened, alarmed, and determined corporate
America that all worked together to give corporations unprecedented
power aided by laissez-fair government policies toward them.
Powell was a perfect example of a former corporate lawyer who, once
on the U.S. Supreme Court, continued as a corporatized justice. He
significantly influenced the court's decisions rolling back the
expanding judicial interpretations of federal securities laws. He
was a consistent defender of corporations' constitutional right to
free speech. In a 1972 decision, which reversed a Hugo Black
decision nearly a quarter of a century earlier, he successfully
argued that mall owners could prohibit the free speech of activists
distributing flyers on public issues and then four years later
wrote the majority opinion that corporations had the right to speak
out on public issues; and in 1980 he again wrote for the majority
opinion a "fervent defense" of corporations' free-speech rights.
[6] Corporations owe him an enormous debt of gratitude for that
defense, and it surely must have fortified the corporate-sided
reasoning behind the January 21, 2010 ruling by the Roberts'
court.
Chief Justice William Rehnquist's Court Elects a
President
And not just any president; it was George W. Bush, the unofficial
international war criminal who ordered the bombing and invasion of
Iraq. I imagine you know the story but it is worth recapping very
briefly.
Vice President Gore held a large lead in the plural vote over Bush
in the 2000 election but the Electoral College outcome, the one
that idiotically really matters was up in the air. Florida was
the key to the outcome, but there had been voting irregularities
and recounts. The governor of the state was the brother of George
Bush and as governor appointed the state secretary who is
responsible for matters dealing with the election process in the
state. The secretary rushed through a vote count that was still
incomplete but gave Bush the lead and certified him as the winner.
Gore's contingency was primed to sue but the Republican Party beat
them to the punch by taking the case to SCOTUS, where five
conservative, pro-Bush justices prevailed, overturning a Florida
Supreme Court ruling and refusing to allow any more recounting of
votes. [7] This sordid affair will go down in history as one of the
most shameful and unconstitutional verdicts of SCOTUS.
It will also go down as one of the most consequentially deadly
verdicts ever. Mr. Gore was quoted as saying " We would not have
invaded a country that did not attack us." [8]
Chief Justice John Roberts: "No More Mr. Nice Guy"
John Roberts, 17th and current Chief Justice of the United States,
is a multimillionaire and third youngest Chief Justice in the
history of SCOTUS. [9] He was nominated by George W. Bush in 2005
and was confirmed by the Senate Judiciary Committee that apparently
was fooled by his dissembling claims about what he was and was
not. [10].
The real Roberts that he had kept veiled (shades of Powell) and
then removed once he began presiding over cases was an unabashed
friend of Corporate America. [11] A Washington lawyer commented
that the "Rehnquist court was really quite a good forum for
business---but the Roberts court is even better," and an executive
vice president of the US Chamber of Commerce "declared the Robert's
court as "our (emphasis mine) best Supreme Court ever."
[12] At the close of the first full term of the Robert's court, the
New York Times editorialized that "time and again the court has
ruled, almost always 5-4, in favor of corporations and powerful
interests while slamming the courthouse door on individuals and
ideals that truly need the court's shelter." [13] Legal journalist
Jeffrey Toobin has portrayed Roberts as a "No More Mr. Nice Guy"
who "has sided with the prosecution over the defendant, the state
over the condemned, the executive branch over the legislative, and
the corporate defendant over the individual plaintiff." [14]
Mr. Toobin might as well have called Roberts the "Chief Justice for
the United Corporations of America." Roberts sealed that epithet
with the January 21, 2010 ruling on Citizens United. The ruling
stood both the Constitution and people with common sense on their
heads. Five justices, including the Chief, voted for it, four
against it. It was an absolutely preposterous verdict.
It's absolutely unimaginable that the Framers meant to give
corporations Constitutional rights but somehow forgot to do so.
They had a vivid memory of the Crown's oppressive and ruthless
corporations, detested them, and avoided mentioning them in the
Constitution. As absurd as it seems, trying to uproot corporate
personhood would amount to having to expunge the word "corporation"
from the Constitution that's not even in it.
SCOTUS and the Perilous Industries
As preposterous and un-constitutional as the Citizens United
verdict is there has been entirely too much hyperbole about its
ramifications. They are primarily limited to issues of free speech
and corporate influence on elections. The ruling doesn't affect the
choice of SCOTUS justices because they aren't elected, and only 24
states elect justices to their supreme courts. Seeking to overturn
the ruling would be practically impossible to do and would not
phase corporate America in any case. Corporations have too many
other levers of control over our government.
The ruling is also just the latest in a long string of
Constitutional violations the corporatized Court committed in
granting corporations other Constitutional rights derived from
corporate personhood; namely, the corporation's right to a) due
process, b) be free from unreasonable searches, c) a jury trial in
a criminal case, d) compensation for government takings, e) be free
of double jeopardy, f) jury trial in a civil case, g) commercial
speech, h) political speech, i) dissociate with others' speech, j)
equal protection, and k) compensation for regulatory takings that
aren't available to real people.
And being granted corporate personhood is hardly a perilous
verdict. What follows is a selective review of some that are
perilous because of their catering to the more perilous industries
(the defense and national security industry, the pharmaceutical
industry, the agribusiness industry, the energy industry, and the
alcohol, tobacco, and firearms industry) and the unending
consequences involving the injury to or loss of life or liberty
and/or irreparable environmental damage.
SCOTUS Supports U.S. Wars
A class action suit against the Department of Defense was filed on
behalf of all U.S. citizens opposing the Vietnam War and
petitioning for its cessation. SCOTUS ruled that the petitioners
did not have the appropriate standing to sue and ruled against
them. [15] The petitioners had a moral standing. SCOTUS had an
immoral standing.
SCOTUS Doesn't Like the CIA Being Embarrassed
Frank Snepp, a Peabody award-winning investigative journalist
joined the CIA in 1968 and agreed not to publish any information
about the agency's activities without first getting its approval.
He became the CIA's chief strategy analyst in Vietnam during the
war there, and subsequently wrote a book about it without getting
approval. The CIA did not accuse him of revealing any secrets, but
claimed he had "damaged the country by creating the appearance of a
CIA security melt down." That is an entirely bogus claim but SCOTUS
swallowed it and ordered that Snepp be punished by gagging him for
life, be required to submit to agency screeners anything he might
write about what he'd learned, and permitted the government to
confiscate the profits from his published expose. [16]
SCOTUS Supports Military Exercises Over Protection of Marine
Species
The Natural Resources Defense Council plus other environmental
groups filed an injunction to prevent scheduled Naval training
exercises the plaintiffs argued would seriously harm species of
marine mammal in the southern California waters. Lower courts
upheld the injunction. SCOTUS rejected it, ruling that the public's
security gained from the training exercises outweighed any
irreparable harm to marine life. [17] Preparing the Navy for
possible military engagements was obviously more important to
SCOTUS than protecting a species.
SCOTUS Allows Flesh-Eating Generic Drug Prescriptions
The victim had taken a prescribed generic drug for shoulder pain
that ate her flesh, leaving her permanently disfigured over most of
her body and nearly blind. These possible side effects had not been
put on warning labels by the drug maker. The victim sued for
damages and was awarded $21 million by a lower court. SCOTUS,
however, when it had its turn at the victim, overturned the lower
court's verdict and award, holding that all generic drug makers are
not liable for side effects or mislabeling and that a drug is safe
if FDA, which is a captive of Big Pharma, says it's safe. [18] The
verdict is virtually a free insurance policy for generic drug
makers since about 80% of all prescriptions are for generic drugs,
leaving millions of Americans at risk.
SCOTUS Allows Vaccines with Dangerous Design Flaws
An infant incurred autism after being routinely vaccinated. The
parents sued the vaccine maker. SCOTUS ruled that vaccine makers
are liable only for proper manufacturing and labeling and not for
the design of the vaccine. [19] This is a senseless verdict. Proper
design comes first, followed by manufacturing and labeling.
Want to take a prescribed medication, fly in a plane, drive a car,
go over a bridge etc., all with serious design flaws?
SCOTUS Allows Creation of Genetic Monsters
Supreme justice can be more horrifying than fiction. SCOTUS ruled
in 1980 that genetically modified organisms (GMOs) can be patented.
Ever since, Monsanto and other corporations in the agriculture and
food industry have been racing to apply and profit by replacing
nature with as many GMOs as they can. These are artificially made
living organisms that if they exist in the food we eat can cause
considerable damage to our bodies.
The explosive proliferation of GMOs in the food chain has unleashed
a "ticking time bomb" toward "genetic suicide" according to experts
who should know. [20] Attribute the origin of this continuing
horror story to five members of SCOTUS who didn't know or didn't
care about the hazardous consequences of their verdict while surely
knowing that GMOs would enrich the agriculture and food
industry.
SCOTUS Favors Monsanto's GMO Seeds over Indiana Farmer's
Livelihood
More than 20 years later SCOTUS struck again against nature, ruling
that an Indiana farmer had infringed upon Monsanto's patent for GMO
seeds that the company had spent millions of dollars developing.
The farmer had bought some seeds from a grain elevator that turned
out to have been genetically modified. Andrew Kimbrell, executive
director of the Center for Food Safety executive director stated
that "The court chose to protect Monsanto over farmers and is
contrary to logic and to agronomics, because it improperly
attributes seeds' reproduction to farmers, rather than nature."
[21]
SCOTUS Doesn't Mind Mining's Environmental Wreckage
To the mining business earth is their resource and dumping ground,
but SCOTUS doesn't seem to mind. It ruled that the Corps of
Engineers had the authority to allow mining waste to be dumped into
rivers, streams and other waters. The losers in this case were the
plaintiffs (environmental groups), the environment, aqua life, and
the health security of human beings living along or using polluted
waterways. [22]
SCOTUS Lenient on Exxon Mobil for Worst Oil Spill in
U.S. History
The allegedly inebriated and known alcoholic pilot of Exxon's
supertanker struck a reef, spilling 11 million gallons of crude oil
into the Prince William Sound in Alaska and endangering the marine
life and livelihoods of people dependent on the sound's resources.
SCOTUS lowered by 90% what had previously been a $5 billion
punitive damages award against Exxon Mobil. [23] The award is
nothing more than a slap on the wrist for one of the most
profitable corporations in America that is still spilling oil and
lying about it. [24]
SCOTUS Misunderstands 2nd Amendment, Tolerates
Gun Slaughter
"People will die because of this decision. It is a victory only for
the gun lobby and America's fading firearms industry." [25] That
was the comment of the legislative director of the Violence Policy
Center following the ruling by SCOTUS in 2010 in which five
conservative (naturally) justices held that the right to keep and
bear arms is fundamental to the American idea of freedom. The
verdict was essentially foretold by a similar SCOTUS verdict in
2008 (District of Columbia v. Heller).
The two SCOTUS verdicts are based on a total misunderstanding of
the 2nd Amendment and the context of the new nation
at the time the Amendment was written. It reads, "A well regulated
Militia, being necessary to the security of a free State, the right
of the people to keep and bear arms, shall not be infringed." The
introductory phrase is a pre-condition for the main clause that
follows, and thus for much of the history of the U.S. that right
has been interpreted as meaning the "collective" right, that is,
the collective named "Militia" and not the right of citizens as
individuals to keep and bear arms.
That interpretation of a collective right is consistent within the
context of the uprising by some dissident citizens of Massachusetts
that had occurred just a few years prior to the
2nd Amendment and that had required the raising of
a private army, or militia, to defeat the rebels that had attempted
to seize a federal armory in that state.
The two SCOTUS verdicts also are in total disregard for the Militia
Acts of 1792 that was debated and approved by the same authors of
the 2nd Amendment. These Acts, which were used to
suppress the Whiskey Rebellion in 1794, clearly did not call forth
citizens as individuals but instead provided "for the authority of
the President to call out the Militia," which was obviously the
only practical way to quell an insurrection. [26] The Militia Acts
were eventually replaced by the Militia Act of 1903, which created
the United States National Guard as the new embodiment of an
organized militia to deal with domestic violence on a large
scale.
One justice of SCOTUS in its second verdict revealed how the nation
puts its most crucial issues of justice in the hands and minds of
individuals whose knowledge and use of legalese and narrow legal
considerations far surpass their intuition and knowledge about the
ordinary facts of reality. This justice is quoted as saying that
"experts differ on whether private gun possession increases or
decreases death and injury." [27] Intuition alone from an unbiased
mind flatly refutes that absurd claim. So do the facts of the
matter when examined. For example, a Harvard School of Public
Health comparative study of 26 developed countries showed that
"wherever there are more firearms, there are more
homicides---exponentially more [in the U.S.]: the American murder
rate is roughly 15 times that of other wealthy countries, which
have much tougher laws controlling private ownership of guns. [28]
No country in the world has more guns per capita [than the U.S.],
with some 300 million civilian firearms now in circulation, or
nearly one for every adult." [29]
Wrap Up of SCOTUS Verdicts' Review
Ten SCOTUS verdicts favoring five perilous industries, the defense
and national security industry, the pharmaceutical industry, the
agribusiness industry, the energy industry, and the firearms
industry have now been reviewed. They spanned 124 years of verdicts
and reveal that robed justices, nominated by warriors-in-chiefs in
one branch of our government and confirmed by members of a chamber
of ill-repute in the second branch and under corporate influence
can render stupefying and horrifying verdicts that help to
perpetuate human misery and environmental degradation.
Concluding Remark and Summary
SCOTUS is just one of three branches of a totally broken
government, broken in part at the very start by the U.S
Constitution that is fundamentally flawed in its design and needs
to be "demythologized" by asking "What kind of government do we
want?" [30]
In summary, this article started with a retelling of the 1886
verdict by SCOTUS that surreptitiously gave the nod, or wink, to
corporate personhood; goes on to retell the legacy of a tobacco
road lawyer who was not forthright about his pro-corporate views
during confirmation hearings and as a result became a staunch
defendant of corporate America during his time on the bench;
retells the story of the SCOTUS that elected a president of the
U.S.; explains how the current Chief Justice John Roberts came to
be called "no more nice guy," and ends with the review of the ten
verdicts.
Citations
[2]. My account of the Waite "caper" is drawn mostly
from Nace, T. Gangs of America: The Rise of Corporate
Power and the Disabling of Democracy. San Francisco:
Berrett-Koehler, 2003, pp. 102-109. But see also,
Meyers, W. The Santa Clara Blues: Corporate Personhood
versus Democracy. For the actual court proceedings of the
Santa Clara decision see,www.tourolaw.edu/patch/Santa.
[3]. The full text of the memorandum written by Lewis F. Powell,
Jr. on August 28, 1971 to the U.S. Chamber of Commerce is
at http://reclaimdemocracy.org/powell_memo_lewis/ .
All quotations in this chapter of Powell's message are taken from
the full text of his memorandum.
[4]. Jeffries, J. Justice Lewis F. Powell: A
Biography. Fordham University Press, 2nd edition, 2001.
[5]. Nace, op cit., p. 138.
[6]. Drutman, L. & Cray, C. The People's Business: Controlling Corporations and
Restoring Democracy. San Francisco: Berrett-Koehler, 2004,
p 47-48.
[7]. See Zinn, H . A People's History of the United
States. Harper Collins, 1999, p 676-677.
[8]. See http://en.wikiquote.org/wiki/Al_Gore .
[9]. From Wikipedia.
[10]. See Rosenberg, P. Lying In The Confirmation Process & Beyond:
John Roberts, Pt. 1-Part 3. July 10 , 11, 13, 2013,
Crooks and Liars.
[12]. Barnes, R. & Johnson, C. Pro-Business Decision Hews To Pattern of Roberts
Court. The Washington Post, June 22, 2007, p. D0.1.
[13]. Editorial. Justice Denied. The New York Times Online, July 5,
2007.
[14]. Toobin, J. No More Mr. Nice Guy: The Supreme Court's Stealth
Hard-liner. The New Yorker, May 25, 2009, p. 42-51, p.
44.
[17]. Legal Information Institute. Winter v. Natural Resource
Defense Council Inc. http://www.law.cornell.edu/supct/cases/topic.htm ,
November 12, 2008.
[18]. MBD. Supreme Court Rules Drug Companies Exempt From
Lawsuits. Politicalblindspot.com, July 8,
2013.
[19]. McCarthy, M. Supreme Court Rules in Favor of Vaccine
Manufacturers. National Journal, February, 22, 2013.
[20]. Todhunter, C. Genetic Engineering and the GMO Industry: Corporate
Hijacking of Food and Agriculture. Global Research, December 30,
2012.
[21]. Wolf, R. Supreme Court sides with Monsanto in major patent
case
[25]. Biskupic, J. & Johnson, K. Supreme Court ruling tilts law against limits on
guns. USA TODAY, June 29, 2010.
[26]. See wikipedia.
[27]. Biskupic, J. & Johnson, K., op. cit.
[28]. Editor. In Other Countries, Laws Are Strict and Work. The
New York Times, December 17, 2012. See also, Leber,
J. The Scientific Case for Outlawing Guns. MIT
Technology Review, February 7, 2013.
[29]. Editor, The New York Times, op.cit.
[30]. Wheatcroft-Pardue, K. The Broken Government. OpedNews.com., September 6,
2011.
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