The last thing America needs is more Supreme Court justices who think that corporations can do no wrong. We’re still reeling from the misdeeds of AIG and Wall Street, BP Oil, Massey Coal, JP Morgan and Haliburton–just a few of the corporations that have recently inflicted terrible losses on families across America and society as a whole after capturing regulatory agencies, corrupting public officials, and flouting the law.
But the Roberts Court majority sees no evil, handing out victories by the bushel to big business. Without even being asked to do so, five Justices in 2010 overrode their colleagues in the Citizens United case and bestowed upon the CEOs the power to spend trillions of dollars from corporate treasuries promoting compliant politicians to the public in campaign season.
Yet, just when it looked like things couldn’t get any worse, Republican presidential candidate Mitt Romney selected as his top legal adviser Robert Bork, a conservative polemicist whose career has been devoted to the proposition that corporations can basically do no wrong, the courts should faithfully serve the corporate agenda, and democratic government should step out of the way.
While Bork is an authoritarian statist when it comes to the rights of individual Americans to obtain birth control or read books, have sex or watch movies that Bork disapproves of (see “Borking America: What Robert Bork Will Mean for the Supreme Court and American Justice“), he is a laissez-faire libertarian when it comes to the rights of large corporations to ditch environmental regulation, fire pro-union workers and generally have their way with the rest of us without regulatory restraint. He seeks hierarchical discipline for natural persons but maximum freedom for big businesses to merge with one another, purge their workers, and splurge on pet politicians.
The key to seeing what Bork’s hand-picked judges would do on the bench is analyzing Bork’s own record as a judge on the United States Circuit Court for the District of Columbia.
In August 1987, during the controversy over President Ronald Reagan’s nomination of Judge Bork to the United States Supreme Court, the Public Citizen Litigation Group published an exhaustive and devastating report on Bork’s record as a judge.
The authors could find no “consistent application of judicial restraint or any other judicial philosophy” in Bork’s work on the Court. Rather, by focusing on split decisions, where judicial ideology is made most plain, Public Citizen found that “one can predict [Judge Bork’s] vote with almost complete accuracy simply by identifying the parties in the case.”
When the government litigated against a business corporation, Judge Bork voted for the business interest 100% of the time. However, when government acted in the interest of corporations and was challenged for it in court by workers, environmentalists and consumers, Bork voted nearly 100% of the time for the government.
Thus, what we can think of as the Bork Rule, a rule that now suffuses conservative judicial activism: Corporations over government, corporate government over people.
In the crucial field of administrative law, for example, Judge Bork “adhered to an extreme form of judicial ‘restraint’ if the case was brought by public interest organizations against a government regulation or policy. His vote favored the government in every one of the split decisions in which public interest organizations challenged regulations issued by federal agencies.” In these cases, Judge Bork defended, for example, the Reagan administration’s corporate-friendly rules relating to the environment, the regulation of carcinogenic colors in food, drugs and cosmetics, and the regulation of companies with television and radio licenses, as well as privacy rules in family planning clinics. Bork tends to vote to uphold government policy when corporations like it and consumers, environmentalists, and workers are on the other side.
In the eight split decisions where a corporate interest challenged the government’s regulatory policy or ruling, Judge Bork voted straight down the line against the government and for business–every single time.
What the Bork Rule means is that there is no formal integrity to his legal reasoning. The way to figure out who is going to win in a case is simply by identifying the parties. The reasoning flows out of his choice of favorites appearing before him, and this is a style of judging that is now pervasive throughout the federal circuit courts.