U.S. PIRG Consumer Blog: Supreme Court, Inc.: Jeffrey Rosen in NYT Magazine

In today's New York Times Magazine, Jeffrey Rosen has a long story, Supreme Court, Inc. on the history of the corporatization of the Supreme Court. The article outlines the U.S. Chamber of Commerce's long campaign, going back to a 1971 memo on changing the views of courts, Congress and society toward business interests, written by corporate lawyer Lewis Powell, who was later that year nominated to the Court by Richard Nixon. The now-famous memo outlined a strategy to build a structure of conservative institutions such as the Heritage Foundation, to fight campus activism and for the business community to use "more-aggressive" messages and tactics to make the world, Congress and the courts, more sympathetic to business.

One result of this pro-business campaign is, of course, the successful demonization of trial lawyers. A second? The Supreme Court, Inc. led by CEO John Roberts. The story even details how K St. law firms use a stable of former "favorite clerks" and when they are already signed up on the other side, "next-favorite clerks" -- to file pro-business petitions (few petitions are granted each term, so this can raise the chances for consideration dramatically).

Business is winning cases that limit consumer damage awards, limit the right to bring citizen lawsuits when harmed by dangerous products or financial scams and preempt stronger state laws. From Rosen's story:

By asking the Supreme Court to prevent injured consumers from suing in state court, the business community, supported by the Bush administration, is trying to ensure that these consumers often have no legal remedy for their injuries. And the Supreme Court has been increasingly sympathetic to the business community's arguments.

Among the recent cases that we have been involved in as friends-of-the-court on behalf of consumers, where the court has ruled for business and against consumers are:

Wachovia vs. Watters, preempting state authority over unfair practices of non-banks owned by national banks;

Riegel vs. Medtronic, holding that FDA premarket approval of a medical device preempted injury claims for defects brought under state law;

Stoneridge vs. Scientific Atlanta, where the court limited the rights of defrauded investors (a case in which the Justice Department backed the Chamber and opposed the SEC).

There are several more cases that could bring troubling results pending before the Supreme Court, Inc. this term.