The US Supreme Court is a corporate star chamber, and big business wants to keep it that way.
That’s why corporate lobbying groups — like the Business Roundtable, the National Federation of Independent Businesses, and the US Chamber of Commerce — are pressing the Biden administration not to reform the Supreme Court.
The lobbying groups warn that expanding the Supreme Court would damage perception of its legitimacy and independence. It’s a ridiculous argument, given that Republicans blocked President Barack Obama from filling a Supreme Court seat in 2016, stacked the court with conservative ideologues under President Donald Trump, and confirmed Justice Amy Coney Barrett days before the 2020 election.
Some of the business organizations are even claiming that adding seats on the Supreme Court would harm the US economy.
The groups’ letters were filed in response to President Joe Biden’s decision to set up a commission to consider court reform options, such as adding more justices as a defense against the existing corporatist supermajority. Taken together, the documents offer further proof that corporate interests will do anything to preserve a GOP-dominated court that is a boon for business, no matter how reactionary the justices may be.
So far, the Biden administration seems to be heeding some of the lobbying groups’ arguments about protecting the Supreme Court’s legitimacy, even as the court’s conservative justices aggressively threaten abortion rights — and as Democratic senators point out that “wealthy special interests” have already captured the court.
“Harm Our Nation’s Economy”
The Business Roundtable, a lobbying group that represents corporate CEOs, secured favorable headlines in 2019 when it announced that it would “push for an economy that serves all Americans,” not just company shareholders.
The organization, however, has yet to do anything to fulfill that promise — and just days before the Supreme Court knocked down the Biden administration’s federal COVID-19 eviction ban, the Business Roundtable argued that reforming the court isn’t necessary and would actually hurt the US economy.
“In our view, increasing the size of the court is not only unnecessary but would also harm our nation’s economy and global competitiveness,” the Business Roundtable wrote in August in a letter to the Biden administration.
“Any alteration to the Supreme Court’s independence and stability — perceived or actual — would have dire economic consequences,” said the organization. “If American business owners expect that their legal rights and obligations will change with the political winds, they will be less inclined to deploy capital and invest in growth and innovation. In addition, such change would weaken the conditions that make the United States such an attractive place for business and investment from around the world.”
Adding seats, the Business Roundtable continued, would create “greater uncertainty and more costly litigation as lower courts struggle to sort out the court’s binding instructions. This uncertainty would, in turn, place additional restraints on economic growth and innovation.”
The National Federation of Independent Businesses (NFIB), a corporate lobbying group that calls itself “the voice of small business,” issued a similar warning in June.
“America’s small businesses depend on courts to provide stability and predictability in adjudication under the law of property, contracts, torts, insurance, employment, and other business-related matters,” the NFIB wrote. “Turning federal courts, and in particular the Supreme Court of the United States, into political spoils to be seized instantly by the political party that prevails in congressional and presidential elections in a particular year would destroy the stability and predictability an effective free market economy requires.”
The NFIB, however, didn’t seem to be concerned about turning the federal courts into political spoils when it backed all of Trump’s Supreme Court nominees, or when it opposed Obama’s 2016 nominee Merrick Garland. Senate Republicans never gave Garland a vote, which allowed them to begin the process of flipping control of the court.
“Americans treasure the nation’s dedication to the rule of law,” the Chamber wrote in August. “The Supreme Court plays an important role in transforming that formal commitment into a practical reality. Interventions in its size and affairs are to a large extent absent from the historical record, and for good reason. The commission, Congress, and the country at large should not take this record for granted, nor should any citizen invite a course of action that would jeopardize the court’s independence.”
“Restoring the Court’s Legitimacy”
One draft document says that “the risks of court expansion are considerable, including that it could undermine the very goal of some of its proponents of restoring the court’s legitimacy.”
The document notes that some commission members believe that “court expansion is likely to undermine, rather than enhance, the Supreme Court’s legitimacy and its role in the constitutional system, and there are significant reasons to be skeptical that expansion would serve democratic values.”
However, there are good reasons to question the court’s legitimacy. Republicans managed to flip the Supreme Court and build a substantial GOP majority with the support of a secretive conservative network that has been fueled by tens of millions of dollars in dark money and steered by Trump’s judicial adviser, Leonard Leo.
As the Daily Poster has previously reported, this conservative courts network has regularly been financed by eight-figure donations from mystery donors. The vast majority of its funding sources have never been disclosed.
What’s more, the court’s newly minted conservative supermajority recently allowed a restrictive Texas abortion law to take effect. Justices could soon allow additional limits on abortion rights — and potentially even overturn the court’s landmark 1973 abortion decision, Roe v. Wade.
The court may also threaten environmental regulators’ ability to limit carbon emissions at all amid an escalating global climate crisis.
In a recent “Captured Courts” report, Senate Majority Leader Chuck Schumer (D-NY) , Senator Debbie Stabenow (D-MI), and Senator Sheldon Whitehouse (D-RI) wrote that “wealthy special interests have been able to successfully undermine our Constitution’s promise of an independent judiciary.”
Whitehouse separately wrote in a new law review journal that “the courts are becoming an arena for enacting policies by judicial decree that are too unpopular to pass through democratically elected legislatures.”
Unsurprisingly public approval of the Supreme Court has plummeted: It reached an all-time low of 40 percent approval, according to a Gallup poll released in September.