In case you’ve managed not to notice, the old saw, “the best government money can buy” increasingly applies to our legal system. In ECONNED, I describe briefly how a well funded “law and economics” movement which had corporate backing, including from the extreme right wing that was systematically trying to move America to the right, sought to incorporate ideas from neoclassical economics into the practice of law. It was seen as “off the wall” at the time, but has proven depressingly effective.
A more obvious effort is simply to get judges in place that will deliver the verdicts you want. A Mother Jones article, “Permission to Encroach the Bench,” (hat tip reader Francois T) discusses how already big ticket battles over state supreme court seats are likely to rocket to a new level of priciness:
For a down-ballot category that even well-intentioned voters pay little attention to, judicial races are astonishingly expensive. In 2004, $9.3 million was spent in the race for a single seat (pdf) on the Illinois Supreme Court. That’s higher than the price tag of more than half the US Senate races in the nation that year. In 2006, three candidates for chief justice in Alabama raised $8.2 million combined.
But those sums could look paltry compared to the spending likely to be unleashed in the wake of the Supreme Court’s Citizens United ruling. In all, 39 states elect judges—and with the stakes including everything from major class actions to zoning and contract cases to consumer protection, workplace, and environmental issues, corporations have always taken a major interest in those races. The US Chamber of Commerce, Forbes reported in 2003, has devoted at least $100 million to electing judges sympathetic to its agenda. “No organization has had more success in the past 10 years of judicial elections,” says James Sample, a professor at Hofstra University who studies judicial reform issues. “Its winning percentage would be the envy of any sports franchise.” Citizens United has essentially wiped out not just federal restrictions on campaign spending, but many state-level regulations as well, Sample notes, and that’s “going to increase the ability of corporations, and to a much lesser extent unions, to engage in electioneering that is basically aimed at winning particular cases.” And given the low profile of these races, it may not take that much to sway that outcome, notes Bert Brandenburg, executive director of the advocacy group Justice at Stake. “A judicial election is a better investment for anyone spending money” than, say, a congressional campaign.
Note the reference to Alabama, a state I know a wee bit about, and my local sources say the Mother Jones figures are greatly understated, and attorneys in the state who’ve turned over a few rocks put the price tag for a state supreme court seat at $12 million. I’ve had a quick look at a Supreme Court justice’s house. It is in an implausibly costly district for his income (and no, there’s no heiress wife to explain the discrepancy).
Why is Alabama such a valuable state to control? It used to be a favorite venue for class action lawyers, since juries often handed out multi-million-dollar awards. Getting business-friendly jurists in place at the highest court has meant that any verdict, no matter how egregious and damaging the violations, is cut to $1 million.
And the degree of banana republic behavior is reaching new levels. Consider: a once prominent corporate firm has been reduced to becoming primarily a foreclosure mill. However, because longevity counts in the South, and many of the firm’s senior partners still dine with judges, it has clout well in excess of its fallen standing.
On a case which is now being tried, this fading firm (we’ll call it Billem) has managed to get the case (which is being heard only by a judge) moved from the court before a decision has been rendered to a sympathetic appeal court judge. In addition, Billem is appending four other cases which that have already been decided and are past the time frame for appeal (in Alabama, you have 43 days in which to file an appeal). The rationale is that these cases present similar issues, but that still has the effect of reopening cases which under existing law are settled. For lay reader, if you miss the deadline for appeal, you can’t appeal…..except in when the right people in Alabama want it to occur.
So this isn’t merely having judges who will provide the opinions big business wants. We now have a court running roughshod over basic elements of procedure. The last bastion of defense of the individual is being gutted, to the point where even the forms of the law will be ignored if that’s what it takes to produce the outcome the big money interests need.
And to remind us why that puts us all at risk, consider this defense of the reason of the law from Roger Bolt’s screenplay about Thomas More, A Man for All Seasons:
More: Yes. What would you do? Cut a great road through the law to get at the Devil?
Roper: I`d cut down every law in England to do that.
More: Oh! (advances on Roper) And when the last law was down, and the Devil turned round on you –where would you hide, Roper, the laws all being flat? (He leaves him) This country’s planted thick with laws –man’s laws, not God’s –and if you cut them down –and you’re just the man to do it –d`you really think you could stand upright in the winds that would blow then? (Quietly) Yes, I`d give the Devil benefit of law, for my own safety`s sake.