If you want the power to impose unpopular ideas on an unwilling public, courts make an alluring target. After all, federal courts have power. They decide how and when laws should be applied. They decide who is allowed to sue, and on what grounds, and how the case proceeds. They decide when an agency has acted improperly in denying a permit, enforcing a law, or issuing a regulation. They decide whether laws are constitutional. They decide winners and losers in lawsuits, and they set the rules of litigation.
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Sometimes hundreds of millions of dollars can be at stake; sometimes an entire business model. Federal judges don’t have to respect popular opinion. They are appointed for life, removable only by impeachment. “The power thus put in their hands is great,” wrote Justice Benjamin Cardozo, “and subject, like all power, to abuse.”
So if you’re someone used to getting your way, it’s worth your time and effort—and millions, perhaps billions, of your dollars—to try to re-orient courts to your liking.
But the Framers of the Constitution didn’t make it easy. They understood human nature. They were acutely aware that, in the words of James Madison, “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” They built into the Constitution failsafes designed to ensure that democracy could survive the inevitable temptations of tyranny and corruption. The Framers worried that a government that served the few rather than the many could ultimately undermine the public’s trust, compromising the government they had worked so hard to establish. They were determined that their unprecedented experiment in self-governance should succeed. So they used what they knew of human nature to make American democracy, in twenty-first-century parlance, hack-proof.
The Constitution offers no reason that corporations should have any role at all in our politics.
They took particular care with the judiciary, with its unrivaled power to act outside democratic control. The Constitution’s Article III gives judges a lifetime appointment. They don’t need to audition for a future employer or worry about where the next paycheck is coming from if they issue an unpopular ruling. Nor do they have voters to worry about appeasing. They can focus on justice for the parties before them.
Litigants can’t ordinarily pick their judge. Selection is usually random, so someone trying to woo or threaten a judge has no guarantee that judge will be assigned to her case. This protection is even stronger with juries. Juries are constituted for one particular case, and only after it is filed, so there’s no way to cozy up to jurors beforehand. And tampering with a judge or a jury is a crime.
Another guardrail is appeal, an entirely separate process, and one where judges’ jobs change. At trial, judges determine what evidence can be used to decide the case, parties present their evidence and arguments, and judges determine what the facts are and assign culpability. On appeal, judges decide only whether the trial court properly applied the law to the evidence before it. Appellate courts are tasked with reviewing the case as presented in the courts below, not relitigating it, which means that they don’t get to engage in their own fact-finding or re-question witnesses.
Even with those safeguards, judicial power remains formidable, and its apex is the Supreme Court of the United States—in lawyer-speak, SCOTUS. All appellate roads lead ultimately to the Supreme Court. Nine justices sit together on every case, with just five required to get a majority. As one commentator noted, “if any five agree, they can go galloping off anywhere they choose.” The justices review only a few cases each year—recently, fewer than one hundred—but those cases have the potential to change the American social, political, and economic landscape dramatically.
The decision of the Supreme Court is final. This may seem so commonplace that it doesn’t bear mention, but in fact it is one of the signs of the strength of our system—and of the public’s support for our common constitutional enterprise. With the mere stroke of a pen, without fielding an army or flexing a budget, a Court ruling becomes binding law, obeyed even by those who adamantly disagree. The only way around this is for Congress to change the law, or for the agency to rewrite the regulation at issue. If the Court decides an issue of constitutional interpretation, the only escape from the power of its edict is to amend the Constitution. Court rulings cannot be vetoed, and justices cannot be voted out of office for an unpopular opinion.
This power in a democracy to override the will of the majority and simply declare what the law is requires constraint, much of it self-restraint. As a trio of Republican-appointed justices wrote a generation ago, “The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make.”
One particular constraint under the Constitution is that courts cannot make pronouncements willy-nilly on any law they choose. As Justice Amy Coney Barrett explained to my colleague Lindsey Graham in her confirmation hearing, “Judges can’t just wake up one day and say, ‘I have an agenda. I like guns. I hate guns. I like abortion. I hate abortion,’ and walk in like a royal queen and impose their will on the world.” Instead, they can rule only on an active dispute that “winds its way up” to them from the lower courts—a “case or controversy” in the language of the Constitution—brought by parties who actually have something at stake in the outcome. In lawyer-speak, parties must have “standing.”
Another constraint is that their decisions must be based on evidence that is vetted in the trial courts. Again, appeals courts are not supposed to go off searching for or making up their own facts, but instead they must decide each case based on their review of the facts that were presented in the trial court below. This rule about appellate fact-finding enforces the “case or controversy” requirement by tethering the appellate court to the actual facts of the actual “case or controversy” before it, rather than letting it indulge in hypotheticals or advisory opinions. We constrain our courts not “to innovate at pleasure,” as former Justice Benjamin Cardozo memorably put it a century ago, explaining that a judge “is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness.” The Founders sought to ensure that courts would “have neither force nor will but merely judgment,” and not “endanger” the “general liberty of the People” with profligate decision-making.
Another constraint is that once the Supreme Court has decided a question, that decision has the force of precedent. New cases should not provide an invitation for “do-overs” once the law has been settled. Trial courts must follow the precedent established by their circuit courts, and all must follow the precedent established by the Supreme Court, including, ordinarily, the Court itself. Respect for precedent enforces the view that the law is bigger than individual policy preferences, and it allows public and private parties outside the court a degree of predictability—something to rely on as they establish conforming laws and policies. Respect for precedent, known as “stare decisis,” is what Cardozo called “the everyday working rule of our law.”
The greatest safeguard against judicial mischief is a right of the people that limits the role of a judge altogether, a right that James Madison called “as essential to secure the liberty of the people as any one of the pre-existent rights of nature.” That right is enshrined in our Bill of Rights as the Seventh Amendment to the Constitution: the right to a trial by jury in civil cases. (The right to trial by jury in criminal cases is provided by both Article III Section 2 and the Sixth Amendment.)
It is difficult to overstate how important juries were to our country’s Founders. Juries were an English tradition, first established in the twelfth century by Henry II, when the king’s emissaries rode out to hear disputes in towns and villages throughout the country. Perhaps Henry thought that a jury of one’s peers would mete out justice in a manner that better comported with local norms and traditions. Perhaps he understood the value of “preserv[ing] in the hands of the people that share which they ought to have in the administration of public justice,” as famed legal scholar William Blackstone later wrote in his Commentaries. Perhaps the king suspected that a group of local men (yes, for a long time it was solely men), chosen from the general populace just before trial, would be less susceptible to, in Blackstone’s words again, “the encroachments of the more powerful and wealthy citizens.”
Whatever Henry’s motivations, civil juries endured through centuries. America’s colonists quickly established juries in the New World, and when the British crown interfered with the “Benefits of Trial by Jury,” Thomas Jefferson listed this outrage in the Declaration of Independence as a casus belli of the Revolution.
The original draft of the Constitution failed to include an explicit guarantee of civil trial by jury. Public reaction was explosive, and the Seventh Amendment resulted. The Founders disagreed on many particulars as they debated these documents, but as Alexander Hamilton wryly noted, “The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.”
Against all these protections, a systematic, wholesale takeover of courts—to turn them from safe havens for justice to robed tribunals of an anti-democratic elite—seemed unimaginable. (Alas, we’ll return later to the slow strangulation of the civil jury by the captured Court, to the Court’s fact-finding “knight-errantry,” and to its repeated demolition of precedent that stood in its way.) The Founders did not intend a partisan conveyor belt to run through the Senate’s “advise and consent” function. They had no intent to unleash a flood of dark big-donor and corporate money into the country’s elections. And they did not intend courts as an anti-majoritarian back door for billionaire anti-government donors frustrated that the public hates their ideology.
Courts were special. Courts were different. Courts were sacrosanct. So when the Scheme was launched to capture the Supreme Court, this was not something to be done overnight. It would be a work of decades, requiring an infrastructure to groom and deploy justices who would be loyal to the forces that secured their appointment. It would require the weakening of these various constraints on courts. It would take government allies in the White House and Senate to ensure that the chosen candidates were appointed and confirmed. It would take public relations campaigns to propagandize the public and to legitimize fringe legal theories.
In short, it would take coordination. It would take time. And it would take money. A lot of money.
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Corporate power lurks behind the Scheme to capture the Court, whether through the corporations directly, through billionaire fortunes created by corporations, or through entities established or co-opted to work the will of the corporations and billionaires—through “those that wield,” in Teddy Roosevelt’s words, “the fortunes amassed through corporate organization.”
Corporate political power was created not by the Constitution but by the Supreme Court.
We have all become used to corporations having immense, even controlling, power in our democracy. Corporate power today dominates my workplace, the Congress. But the Constitution offers no reason that corporations should have any role at all in our politics. The Framers did their best to guard their novel experiment against forces that could corrupt the levers of power and frustrate their efforts at popular self-governance. But they failed to anticipate the role that corporations would claim—and be granted—in American political life.
In the Framers’ defense, at the time the Constitution was ratified, corporations were usually chartered for what we think of today as an infrastructure project, like building a road or a canal. State legislatures had the power to revoke their charters if they exceeded their mandate or harmed the local community. When the purpose of the corporation was achieved—the road completed, the canal constructed, the debts paid—the corporation would dissolve.
But things changed. In time, corporate charters permitted a company to operate for any purpose and in perpetuity—and corporate power exploded.
At first, federal courts were wary. As early as 1853, the Supreme Court saw that “to subject the state governments to the combined capital of wealthy corporations [could] produce universal corruption,” and warned of “the power and influence” of “the combined wealth wielded by corporations in almost every State.” This concern about corporate power and influence was true to Blackstone’s warning about “the encroachments of the more powerful and wealthy citizens,” now including corporate citizens, and true to the role of courts and juries to protect against these encroachments. (In the Founding Era, Blackstone’s Commentaries were more likely to be on a lawyer’s shelf than any other book except the Bible, so Blackstone is a trustworthy window into the views of our Founders.)
As corporate influence continued to grow, so did popular concern. In 1888, President Grover Cleveland alerted Congress in his State of the Union Address: “Corporations, which should be carefully restrained creatures of law and the servants of people, are fast becoming the people’s masters.” Nearly two decades later, President Teddy Roosevelt’s own address to Congress warned that “[t]he fortunes amassed through corporate organization are now so large, and vest such power in those that wield them, as to make it a matter of necessity to give to the sovereign—that is, to the Government, which represents the people as a whole—some effective power of supervision over their corporate use.” A few years later, Roosevelt sounded the alarm again: “[T]he United States must effectively control the mighty commercial forces[.]…The absence of effective State, and especially, national, restraint upon unfair money-getting has tended to create a small class of enormously wealthy and economically powerful men, whose chief object is to hold and increase their power.”
In 1901, the Great Dissenter, Justice Harlan, warned of a “kind of slavery sought to be fastened on the American people; namely, the slavery that would result from aggregations of capital in the hands of a few individuals and corporations controlling, for their own profit and advantage exclusively, the entire business of the country.” Thirty years later, Justice Brandeis spoke of the “insidious menace inherent in large aggregations of capital, particularly when held by corporations.” That was then.
As we consider “those that wield” corporate power now in our democracy, remember this: corporate political power was created not by the Constitution but by the Supreme Court, it was created recently, and it was created by Republican appointees to the Court. Remember too that an “influencer class,” out to use its power and wealth to gain more power and wealth, is always with us. In that ancient contest between the elite influencer class and the general population that has been its prey since biblical times, the influencers want the Court.
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From The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court by Sheldon Whitehouse and Jennifer Mueller. Copyright © 2023. Available from The New Press.
