Can’t We Just Say the Roberts Court Is Corrupt?

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This post first appeared in Truthout.

You cannot hope
to bribe or twist,
thank God! the
British journalist.
But, seeing what
the man will do
unbribed, there’s
no occasion to.

–Humbert Wolf, from The Uncelestial City (1930)

The Supreme Court’s decision in McCutcheon v. Federal Election Commission was not about aggregate limits on individual campaign donations to candidates in federal elections. The case was about what constitutes a bribe, how big that bribe has to be and whether an electoral system can be corrupt even in the absence of a legally demonstrable cash payment to an office holder or candidate for an explicitly specified favor. The Roberts court, or five of its nine members, adopted the misanthrope’s faux-naïve pose in ruling that private money in politics, far from promoting corruption, causes democracy to thrive because, money being speech, the more speech, the freer the politics. Anatole France mocked this kind of legal casuistry by saying, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread.”

James Fallows has reminded us that during Chief Justice John Roberts’ confirmation hearing, the nominee described his own judicial approach as “Humility. Modesty. Restraint. Deference to precedent. ‘We’re just calling balls and strikes.'” Fallows goes on to say that Roberts is cynical for adopting that pose to get through the hearing. It is true that he is cynical, no doubt in the same way that prostitutes are cynical women, but I don’t think that term quite captures the key quality that makes Roberts decide legal cases the way he does. Nor does his cynicism differentiate him from his jurisprudential clones named Thomas, Scalia, Alito and Kennedy. 

Mike Lofgren on the Deep State Hiding in Plain Site

There is unquestionably a bit of role playing on the court – Scalia, the opinionated blowhard at your local saloon; Thomas, the total cipher; Alito, the professional Catholic who might have come from the curia at Rome; Kennedy, the guy who purports to be a swing vote when his mind is already made up. Roberts’ role is that of chief justice of the Supreme Court of the United States. He can’t very well clown around in the manner of Scalia, who acts like Bill O’Reilly in judicial robes. The five justices’ bedrock beliefs may well be as identical to one another’s as those of the creepy alien children of Village of the Damned. Roberts is different only insofar as he is the more strategic front man. [1]

Roberts knows he was appointed to be a Supreme Court justice for one reason: to decide relevant cases on behalf of corporate interests. This explains why he made a political move to salvage the Affordable Care Act: The case was a matter of partisan politics before the court. Business interests were roughly divided on the law – some disliked its mandates and provisions that might drive up their costs, while others saw its potential for allowing them to dump insured employees into pools, or, alternatively to benefit from tax subsidies. Still others may have seen it as a license to mint money. ACA was a costly and convoluted way to insure more people, but Republican hacks saw only one aspect: It was Obama’s initiative, so it must be opposed. Roberts saw it as a political squabble involving the other two branches, but on which there was no unified business position. It was a law whose philosophy had a Republican pedigree – the Heritage Foundation had proposed something like it more than a decade before. If a Republican were president, he might have proposed a similar bill; after all, the president who nominated Roberts engineered the Medicare Prescription Drug Act.

Roberts perceived the deeper dynamic beneath the ideological posturing over ACA, and that is why he had to be the deciding vote of a divided court to save the act. Overturning it would cause millions to question the court’s legitimacy on a matter that was not crucial to business interests. Best to save one’s powder for more relevant fights. That said, the four dissenting votes also had to vote as they did to render the decision subjectively moot in the minds of Republican jihadists, who would continue to fight the act tooth and nail. As it was, Roberts threw a valuable bone to the Republicans by vitiating the Medicaid mandate to the states. This made it harder to implement the law and permitted Republican governors and legislatures to work all manner of mischief.

They are cases about upholding the superior political privileges of rich interests in society as opposed to poorer ones.
McCutcheon was a more relevant fight, and here we see Roberts the avatar of corporations rather than Roberts the tactician. Viewing other justices’ decisions through this lens also tightens the focus on an otherwise blurry image. Observers wondered why, during oral arguments in the Sebelius v. Hobby Lobby case, Scalia’s questions implied he was taking a position on religious views in the workplace opposite to the one he had taken in the 1990 Employment Division v. Smith case. In that case, Scalia ruled against employees whose firing for smoking peyote caused them to sue based on alleged violation of their First Amendment right to free exercise of religion. But Scalia was perfectly consistent: In the Smith case, and as he appears likely to do in the Hobby Lobby case, Scalia upholds the rights of employers. [2] Neither one is a case about religion per se; they are cases about the superior prerogatives of employers over employees. In like manner, McCutcheon and Citizens United are not cases about campaign finance laws, nor are they, despite the artful smokescreen about free speech on the part of the court’s majority, cases about free speech and whether money constitutes speech. They are cases about upholding the superior political privileges of rich interests in society as opposed to poorer ones.

We now have an algorithm to crack the Enigma Code of the Supreme Court. Once there are five members of the court who accept as self-evidently valid the 19th century concept of “freedom of contract,” other issues become subsidiary. This framework explains hundreds of cases before the court and clarifies the seeming anomalies like ACA. It explains the court’s position in Vance v. Ball State, which made it more difficult to sue employers for harassment, and Ledbetter v. Goodyear Tire & Rubber Co., which barred remedy for pay discrimination (even Congress subsequently saw fit to redress the bias of the court’s decision). In Wal-Mart v. Dukes, the court rejected a class-action suit of women denied raises and promotions. The Roberts court also took the side of corporations against consumers in Mutual Pharmaceutical Company v. Bartlett and AT&T Mobility v. Concepcion. The Roberts Court declared unconstitutional a 1988 law that subjected corporate officers to fraud charges if they could be shown to have deprived clients of honest services.

As Oliver Wendell Holmes stated in his dissenting opinion on the 1902 Lochner case, which established as virtual court theology the freedom of contract notion (without government restrictions), from which many subsequent pro-corporation decisions have flowed, the court’s majority was basing its decision on economic ideology rather than constitutional interpretation. Roberts is wise enough to know that and is wise enough to conceal his hand with occasional strategic references to the free speech or free exercise clauses in the First Amendment.

A friend once complained to me about a basketball game in which the referee consistently called fouls on one team where none existed and failed to call fouls on the other team, which blatantly and repeatedly committed them. This being only a high school-level game, I asked him if he thought the referee had taken a cash bribe. “Of course not,” was his answer, “he was just blatantly biased.” “Is that also corruption?” was my response. Sometimes, like Humbert Wolf’s British journalist, judges can be corrupted even in the absence of what Justice Roberts narrowly defines as “quid pro quo corruption.” Fallows recommends that Congress enact a fixed term of office for Supreme Court justices. I think that is a good idea, although not just to obviate senescence on the court. It might also wake up citizens to the whole sorry con game if they were forced to contemplate retired honorable justices giving speeches at $500,000 a pop to corporations eager for enlightenment on the finer points of judicial interpretation.

1. The chief justice, and only he, is empowered to appoint judges to the Foreign Intelligence Surveillance Court. That power makes him an ex officio operative of the Deep State and invests him with gravitas. As such he cannot behave like a clown or a mental vacuum.

2. The Hobby Lobby case is, on the surface, a complaint by the company that the ACA violates the religious liberties of the company’s management by forcing it to provide policies that include contraception in its employer-provided insurance to employees. If, however, the company’s pension plan invests heavily in contraceptive manufacturers, how on earth did Hobby Lobby get standing to sue? How could the company claim with a straight face that its material interests were targeted and damaged by the ACA? And how do the executives of a for-profit corporation chartered under state laws for a specific commercial purpose get to invest the corporate entity with a religious soul?

Mike Lofgren is a former congressional staff member who served on both the House and Senate budget committees. His book about Congress, The Party is Over: How Republicans Went Crazy, Democrats Became Useless, and the Middle Class Got Shafted, appeared in paperback on August 27, 2013.
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  • Anonymous

    Re “It is true that he is cynical, no doubt in the same way that prostitutes are cynical women..”

    Matthew Bera is dead on. I can think of several reasons why at least some prostitutes are less cynical than in desperate straits. Plus, the Supreme Court has five prostitutes, all old men.

  • Edward98

    I think many of us would never deny that the US Supreme Court is corrupt. I just don’t see way out.

  • ElC

    Comparing these supremes to prostitutes is an insult to prostitutes.. A prostitute is a victim, the supremes are victimizers.

  • jack lehr

    Left wingers are just pure souls, right wingers are all corrupt scum – *yawn*. I think it better said, “All the politicians, left or right, are corrupt. What a shame we have come to such a divided time. With the strengths of our nation we could do so much – but all right wingers are pure souls, and left wingers are all corrupt scum – oh wait…

  • Jonah Thinketh

    The author does well in suggesting Congress should impose age limit on the SC judges. Besides and before that, we need to work towards having a better Congress, voted in without the influence of big money. That would really help to pass the good laws we sorely need.

  • FDRliberal

    Can’t We Just Say the Roberts Court Is Corrupt?

    We sure can. And it bears repeating.
    The Roberts Court is corrupt.
    The Roberts Court is corrupt.
    The Roberts Court is corrupt.

  • FDRliberal

    The current House is one of the worst and most extremist in American history, holding their fake majority via desperate gerrymandering.

  • FDRliberal

    There is plenty of corruption on both sides no doubt, but with regard to broken govt the Republicans are the real troublemakers these days with their uncompromising extremism.

  • FDRliberal

    I just don’t see way out.

    The only way out is to never elect Republicans for president. Scalia, Thomas, Roberts, Alito and Kennedy are all gifts of the last two Bush presidencies and Reagan.

  • Jason’s Robot

    This phrase struck me;

    “It is true that he is cynical, no doubt in the same way that prostitutes are cynical women…”

    I would agree that in general, prostitutes are probably cynical PEOPLE because, as should be evident to someone in 2014, there are plenty of male prostitutes as well as female prostitutes as well as people who classify as ‘other’.

    But – the main thing is – making such a very shortsighted claim about prostitution, as the original phrase does (well meaning or not), causes skepticism against the writer’s general world view, imo (even if I agree with the crux of the article).

  • Anonymous

    “…Alito, the professional Catholic who might have come from the curia at Rome…” You might want to revisit this description. Clearly Alito is not taking orders from Pope Francis. Better to describe him as a professional “Objectivist”, as he so clearly prefers Ayn Rand to the Church.

  • samm bennett

    Democracy Stolen

    on April second in the year two thousand fourteen
    a bad thing happened to the USA
    do you know what i mean
    it was a dark dark day
    one that will live in infamy
    that’s the day the Supreme Court sold your democracy

    now you might think i’m pulling your leg
    but i ain’t no kidder
    from here on out the politicians are going
    to the highest bidder
    the USA ain’t no democracy no more
    check your dictionary
    oligarchy is the word you’re looking for

    we need a constitutional amendment
    that makes it clear: money can’t buy the government
    if we don’t get that our democracy is through
    and you know it’s true

    people we cannot let this stand
    this subversion of our system
    the ultra rich who are rewriting our laws
    we gotta resist ‘em
    look what they’ve gotten away with
    look at what they doin’
    the nation’s most cherished ideals
    they’ve brought them to ruin

    we need a constitutional amendment
    that makes it clear: money can’t buy the government
    if we don’t get that our democracy is through
    and you know it’s true

  • Anonymous

    jack, no doubt there is corruption in politics because money is involved. However, there is a clear and unarguable difference between left and right. The left tries to improve others’ lives by promoting a system that raises employment, education, voting, and healthcare. The right promotes a system of the opposite, pushing the myth that everyone is an island who must only take care of themselves. This position, of course, is diametrically opposed to the intent of the Founders and is counter-productive to a sustainable society. I know…”yawn”.

  • Robin

    lame and stupid comment. what do you know? oops not much

  • Sother Cross

    A good prostitute gives good value for the pay, maybe these jokes are giving good value to the corporations that pay them??

  • ElC

    LOL, I think they’re really delivering the goods.

  • Anonymous

    For those “originalists” diligently scouring our constitution as to forefathers thoughts, one does not need to look further then “We the people” (not hard to find- right there at the top).

    One thing it‘s hard for anyone of integrity to not concede is that it was founders intent to promote government “of the people, by the people”.
    So now we have a ruling that promotes government “of the few, by the few”.
    Can there REALLY be any doubt that this was not founder’s intent?

    Well fine. Let’s at least have a constitutional amendment and change those first few words to “We the few aristocrats that rule over everyone else”.

    Perhaps we can abolish our whole constitution for the one of Saudi Arabia or something.

    Our constitution does not seem to be written plainly enough for our Supreme Court justices to understand.

  • AlanMacDonald

    Quotes to learn from in the matter of the banking/financial-sector of the Disguised Global Empire:

    “We must break the Money Trust or the Money Trust will break us.” —Louis B.
    Brandeis, 1913 in Other People’s Money and How the Bankers Use It

    [Quoted from Prins, Nomi (2014-04-08). All the Presidents’ Bankers (p. 17). Nation Books. Kindle Edition.]

    “What we have here is not normal government economic policy, but rather a
    form of looting” — Nobel Economics laureate, George Akerlof in early
    2001 describing the new Bush administration of the Empire.

    “Money is free speech” — Chief Justice Roberts of the unSupreme Court in 2010 (Citizens United) and 2014 (McCutcheon).

    and finally and more simply —-

    “Show Me the Money!” — faux-Emperor/president Obama to his campaign
    contributor/bribers 2006 to c. 2016 (“The End of America”).

  • Anonymous

    The Courts are a tool of the international gangsters in control of our world’s economies. A court that rules in secret is what is called extra-judicial, because then the government no longer serves the people, because sunlight is the key to disinfecting corruption, leaving the world of today where investment bankers and hedge funds rule the planet and the biggest liars and thieves are in charge.


    Top-secret court renews NSA snooping at critical point
    January 5, 2014

    (CNN) — The top-secret federal court that oversees government surveillance on Friday reauthorized the National Security Agency’s program that collects data on nearly every phone call in the United States.

    The three-month renewal by the Foreign Intelligence Surveillance Court is the first since two conflicting court opinions last month on the legality of the program.

    Revealed publicly in leaks last year by former NSA contractor Edward Snowden, the program is at the center of the surveillance debate in the United States.

  • Anonymous

    I liked Roberts much better when he had that public seizure.

  • Anonymous

    In a word, yes.

  • Anonymous

    Scalia is Opus Dei Cult so is Thomas, Alito Opus Dei Cult, Roberts, Big Time Opus Dei Cult Kennedy Worships at an Opus Dei Cult Church…Scalia’s Son is an Opus Dei Priest…Opus Dei is Fascism in the Guise of Religion they want to take us back to the 14th Century..and yes they are Corrupt Sons of Bitches who make cheap political decisions not based on case law or precedent but political ideology and religious fanaticism and heresy..!

    These are not devout Catholics in fact they and Opus Dei are the very corrupting influence Pope Francis is battling and The Jesuits have been battling for some time now..and remember it only takes 6 to control 2/3rds of our Branches of government 5 SCOTUS Judges and 1 Chief Executive and it came close to happening with Rick Santorum’s momentum he is also Opus Dei Cult as is Paul Ryan, Sam Brownback, Kuccinelli, Gingrich, Lawrence Kudlow all of the most extremely dangerous Right Wing Nut Jobs..

    TJ Colatrella aka TJ Cole..

  • luvpolitics .

    Corporations win 10 to 1 in the Robert’s Court.. George Bush’s deadliest blow to the American republic, just shy of the Patriot Act, was his appointment of Chief Justice Roberts. Folks, these past 16 years have destroyed this country.