At Truthout, Mike Lofgren concludes that the formula for predicting future case outcomes of the United States Supreme Court is simple and that references to the Constitution are merely smokescreen. Roberts is well aware of this bait and switch: “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.” Instead of really upholding constitutional rights, the Roberts court Lofgren states that the cases are results oriented; they are about upholding the superior political privileges of rich interests in society. The unspoken basis is “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.”
The Court’s recent ultra-narrow definition of “corruption” is a case in point.
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.”
Lofgren would apply the formula like this: 1) If the case involves a well-do-do corporation against ordinary people, the corporations will win. Where the case involves two corporations battling it out, then the bias falls away and the court really uses the law to decide the case.
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.
Based on Lofgren’s title, “Can’t We Just Say the Roberts Court Is Corrupt?” Lofgren argues that it is time to challenge the U.S. Supreme Court’s behavior in terms of a properly expansive definition of “corrupt.”