Issue #23, Winter 2012

The Roberts Court v. America

How the Roberts Supreme Court is using the First Amendment to craft a radical, free-market jurisprudence.

In the last few years, the Supreme Court and lower federal courts have shown a new hostility toward laws that regulate the economy and try to limit the effects of economic power. They have declared a series of laws unconstitutional, most famously limits on corporate campaign spending (the Supreme Court) and a key part of Congress’s 2010 health-care reform act (among others the 11th Circuit Court in Atlanta; the Supreme Court will decide the issue in the coming year). The Supreme Court has also held that Vermont cannot restrict drug companies’ access to the prescription records that they use to target their sales pitches, and struck down other state laws that try to constrain the effect of wealth on elections. These decisions don’t just trim around the edges of regulation: They go to the heart of whether government can act to balance out private economic power in an era of growing economic inequality and insecurity. These decisions chime with some of the more troubling themes of the time. They fit well with the economics-minded idea that most of life is best seen as a marketplace, and with the right-wing mistrust of government that has metastasized into Tea Party contempt and anger.

Liberals have denounced many of these decisions, but they have not yet spelled out the larger pattern. What’s missing from the criticism is a picture of what these cases add up to: an identity for the Roberts Court as the judicial voice of the idea that nearly everything works best on market logic, that economic models of behavior capture most of what matters, and political, civic, and moral distinctions mostly amount to obscurantism and special pleading.

The Supreme Court went down a similar road in the Gilded Age and afterward, defending laissez-faire economic principles against minimum wages, maximum hours, and other Progressive and New Deal regulation. The new cases have different doctrinal logic, and the economy has changed vastly, but the bottom lines are eerily alike: giving constitutional protection to unequal economic power in the name of personal liberty. The Supreme Court’s last go-round with economic libertarianism is often called the Lochner era, after the 1905 namesake case, Lochner v. New York, in which the Court invalidated a state law that set maximum daily and weekly hours for bakers. The Court ruled that the law violated constitutionally protected “liberty of contract,” the freedom of both employees and employers to make whatever agreements they saw fit. Minimum-wage laws were another prime target of Lochner reasoning because they limited the “freedom” to accept low pay. The Court also invalidated laws guaranteeing the right to join a union, struck down price regulations, and, more sympathetically, overturned barriers to entry in some trades and struck down a residential segregation law as a violation of the white owner’s right to sell his property to whomever he liked. Overall, between the 1880s and the 1930s, the Supreme Court struck down more than 200 pieces of state and federal legislation as violations of “economic liberty.”

If Chief Justice John Roberts’s Court develops the new cluster of anti-regulatory cases into a clear agenda, then the Roberts Court will be the twenty-first century’s answer to the courts of the Lochner era. The most extreme scenario would begin with invalidating the 2010 Affordable Care Act, but, win or lose, the mere fact that there is a viable constitutional argument against the law is a sign of how far the new economic libertarianism has gone. With or without that victory, such a jurisprudence would mean the end of regulation of campaign spending, virtually complete constitutional protection for advertising, and aggressive review of regulation in data markets or nearly any industry whose inputs or products are information. In other words, it would call into question whether government can regulate the basic engines of the new economy, just as Lochner jurisprudence did in the Industrial Age.

Information Age Laissez-Faire

For decades, progressive commentators denounced Lochner-style decisions (generally ignoring the anti-segregation holding) as willfully blind to the reality of unequal economic power between capitalists and workers. The Supreme Court, they said, was protecting the interests of employers under the disingenuous claim of preserving everyone’s liberty equally. In 1937, under political pressure from Franklin D. Roosevelt, economic pressure from the Great Depression, and intellectual pressure from critics outside and dissenters within, the Supreme Court abandoned Lochner jurisprudence and closed an era with cases such as West Coast Hotel v. Parrish, where the Court upheld a minimum-wage law against a freedom-of-contract challenge, remarking, “The Constitution does not speak of freedom of contract.” Lochner and “freedom of contract” became bywords for illegitimate judicial activism without roots in the text of the Constitution. Ever since, justices of all political persuasions have merrily accused one another of reviving Lochner. Conservatives see personal liberties such as abortion rights and protection for same-sex intimacy as invented for political purposes, while liberals invoke Lochner when the Court gets in the way of economic regulation, as it did in a set of cases compensating property owners for economic losses from environmental laws in the 1990s.

So, Court-watchers across the political spectrum have cried wolf before; but this time the paw prints are very large indeed. This is more than the usual name-calling because the new jurisprudence shares some special features with the old—in particular, a meshing of constitutional principle with economic libertarianism that calls into question the authority of democratic government to shape markets and, above all, check economic power. The Lochner era matters today because the Supreme Court back then did more than find a way to invalidate some laws that were inconvenient for employers. It gave constitutional expression to Gilded Age economic ideas that stood in the way of essential reforms. Lochner-era cases gave constitutional weight to an ideological view of the economy: that the market was a realm of individual freedom that should be kept separate from government interference, which would corrupt the virtuous effects of private bargaining. Its decisions chimed with the laissez-faire theory that celebrated unfettered industrial capitalism as the greatest triumph of progress and freedom that humanity had ever produced.

If today’s courts go that far, they will be armed with new constitutional tools for a new era of capitalism. A free-market jurisprudence for an economy built on information and consumption looks different from a classically laissez-faire theory suited to industrial capitalism. Ironically enough, its most important tool looks to be that icon of liberal constitutional faith, the First Amendment.

Expensive Free Speech

The principle that Congress “shall make no law…abridging the freedom of speech” is perhaps the most familiar phrase in the Constitution and a liberal touchstone. Recently, though, it has become a linchpin in the Supreme Court’s anti-regulatory cases. Constitutional protection of speech increasingly means protection of spending, advertising, and even markets in the data that advertisers use to craft their messages. In the name of free speech, the Court has overturned regulation in each of these areas. Lurking behind these doctrinal changes is an image of a world in which politics and argument are pretty much the same as pursuing one’s preferences through spending and seeking profit by advertising—a view that levels traditional speech down to the same plane as spending, marketing, and data-mining. Ironically, the result is to elevate spending, marketing, and data-mining to the constitutional protection traditionally given to speech. By passing through this looking glass, the Court has made the First Amendment a new anti-regulatory hammer.

In the instantly infamous 2010 Citizens United v. Federal Election Commission decision, Justice Anthony Kennedy applied these principles in full-throated fashion to strike down a ban on certain corporate spending in elections. Limits on spending count as limits on speech, he wrote, so the power to write a million-dollar check for a wave of last-minute advertising has about the same constitutional status as the right to post a blog entry making the case for your candidate. The principle that spending equals speech was not new, only amplified: It dated back to a 1976 case, Buckley v. Valeo, which overturned limits on individual spending as unconstitutional speech restrictions. The new part of Citizens United was the principle that corporations’ political speech (read: spending) enjoys the same constitutional protection as individuals’ speech. Taken together, these principles implied that Congress could not limit corporate spending to offset the enormous economic power of big companies; doing so was just as unconstitutional as banning a flesh-and-blood person from arguing for or against health-care reform. Kennedy’s language was dire: “The censorship we now confront is vast in its reach.” He warned, quoting an earlier opinion by Justice Antonin Scalia, that the government “has muffle[d] the voices that best represent the most significant segments of the economy.” The decision’s effect on campaigns was immediate and dramatic: The advocacy group Public Citizen reports that in the 2010 elections, spending by newly constitutionally empowered outside groups rose by more than 400 percent over the 2006 midterms.

Just a year later, Kennedy wrote the Court’s opinion in Sorrell v. IMS Health, the Vermont pharmaceutical decision. The backdrop of the case was the enormous amount that drug companies spend marketing their products to doctors and consumers—estimated at more than $30 billion annually in a 2008 study, which put marketing ahead of research and development as a share of industry spending. Pharmacies and data-miners serve drug marketers by selling them doctors’ prescription records, which the marketers use to target their sales efforts. Vermont had barred the sale (or giveaway) of prescription information and its use in marketing, except where physicians gave permission for their records to be used. The policy was meant to protect doctors’ and patients’ privacy, and also to offset some of the market power of the big drug companies, in the hope that more doctors would prescribe less-expensive generic medicines instead.

Kennedy wrote that the law was unconstitutional because it burdened speech—i.e., marketing—based on the identity of the speaker (patent-holding pharmaceutical companies) and the content of their message (advertising of drugs). Kennedy described the issue as follows: “The State may not burden the speech of others in order to tilt public debate in a preferred direction. ‘The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish.’” There is, of course, something otherworldly about describing as “public debate” companies’ targeted pitches to physicians. This constitutional peculiarity has two sources, one very much in line with Citizens United, the other even stranger and more innovative.

The one that is in line with Citizens United is the Court’s growing protection for business’s commercial speech. For more than three decades, the Supreme Court has moved toward treating advertising as strongly protected constitutional speech. While the Court wrote in 1942 that “purely commercial advertising” did not enjoy the First Amendment’s shield, in 1976 (the year of Buckley v. Valeo) the justices reversed themselves in Virginia Pharmacy Board v. Virginia Consumer Council, striking down a state law that forbade pharmacists to advertise drug prices, which was supposed to protect professionalism and discourage race-to-the-bottom competition. The decision established that purely economic speech, such as announcing low prices to potential customers, enjoyed the protection of the First Amendment. The Court reasoned that advertising conveyed useful information to consumers, which made their decisions more efficient, and observed that a listener’s interest in the price of medicine might be “as keen, if not keener by far, than his interest in the day’s most urgent political debate.” There was something reasonable in the idea: The plaintiffs were consumers, not marketers, and the Court observed that, with advertising forbidden, drug prices varied widely around the state.

In the decades since, although the Court has tenuously maintained the formula that commercial speech receives lower protection than “core” political speech, it has struck down limits on advertising for legal services, liquor stores, and tobacco products (in the last instance, invalidating a law that forbade tobacco advertising near schools). A certain amount of the everything-for-sale quality of our public spaces owes directly to the Court’s protection of commercial speech. The justices have never said, though, that advertising deserves the same very strict protection as political debate. Sorrell v. IMS, the Vermont case, comes as close as any to dissolving all distinction between advertising and argument.

The stranger and more innovative aspect of Sorrell is that the case extended First Amendment protection beyond anything recognizable as speech. Campaign spending purchases speech, and advertising “propose[s] a commercial transaction,” in the Court’s phrase, but most of what the Vermont decision protects is not verbal expression or even political spending but simply the sale of data. Sorrell moves toward constitutionalizing an open market in information, at least where the data will inform marketing decisions and the regulation has different effects on different market actors. As the right to speak implied the right to spend and the right to argue implied a right to advertise, now spending and advertising imply a right to buy and sell the information that will go into marketing (which is itself robustly protected as speech). So there is now a constitutionally protected interest in exchanging information on the same terms as everyone else in the market. Any limit on information markets, Kennedy reasoned, would tilt the playing field in favor of those who had more access to data—in Vermont’s case, generic drug companies and public-health agencies.

As Justice Stephen Breyer pointed out in dissent, regulators control the form and content of information transfer all the time—for instance, in guidelines for public and shareholders’ communications by energy and financial companies, restrictions on the uses pharmaceutical companies may recommend for their drugs, and various controls on disclosure of patient information by doctors and hospitals. Many of these regulations are specific to the content of the speech and identity of the speaker, which was the constitutional problem with the Vermont law. It would be simplistic to say that those regulations are on the chopping block, but the reasoning of Sorrell puts their constitutionality in doubt. If nothing else, that reasoning creates a powerful and flexible tool for limiting the regulation of information markets, and further amplifies the Court’s solicitude for marketing as a core constitutional concern. For instance, post-2008 financial regulations requiring disclosure of standard-form information for certain financial products and services, or limiting the kinds of claims hedge funds or mortgage providers can make to clients, could be subject to constitutional attack.

Issue #23, Winter 2012
Post a Comment

Larry Jorgensen:

I am fearful of our country's future. I do not agree that corporations are individual citizens with all the rights accruing to a flesh and blood US citizen. Corporations are a group of individuals banded together in a common commercial enterprise. A corporation cannot vote in an election, why then, should a corporation have the right to influence elections by virtue of tremendous wealth. Isn't that the same as unregulated lobbying?

Dec 13, 2011, 2:16 PM
Kirk Michael:

I am hopeful for our country's future. I have seen that the special interest groups like labor unions which used to have special power over other special interest groups now have come to to play in the planefield as others.

Dec 13, 2011, 3:26 PM
Renee Marie Jones:

"... the voices that best represent the most significant segments of the economy." is a very telling phrase. The Supreme Court asserts that corporations are a "better" voice than their workers and that corporations are "more significant" than their workers.

It is very sad to live in a society dominated by such ideologically mindless, brainwashed, and greed-driven people.

Dec 13, 2011, 5:48 PM

How soon before the Supreme Court legalizes outright bribery? After all, the fact that I can't buy off politicians and building inspectors is an infringement on my liberty. And of course, the poor and rich equally will have the right to purchase the attention of public officials.


Dec 13, 2011, 8:59 PM

I just wanted you to know that this is one of the best articles I have ever read. It is just outstanding. Thank you for articulating thoughts I have struggled with for years.

Dec 14, 2011, 3:49 AM
Ben Meyer:

There is much going on right now that really makes one consider whether the US is still holding true to its values, more specifically those outlined by the Constitution itself. The vast majority of this has sprouted from the overreaching of Congress over the last 100 years - reaching into the rights and liberties of the States and Citizenry.

While I agree that some level of regulation is necessary - EPA is constitutional since environments of one state do affect that of another thereby de minimis the commerce clause could apply, for example; Congress has often overstepped its boundary from Copyright (DMCA), to now Health Care (individual mandate), and many other ways.

And while you are suggesting that much of the weight of wealth and such is being tossed around due to results of SCOTUS, there is much more being tossed around due to the overbearing and overreaching laws passed by Congress itself.

The Constitution is a wonderful piece of work, and any power/right not explicitly granted to the Federal government is thereby reserved for the States and the people. This means that higher levels of government have more restrictions than lower levels of government in what they can do to control the lower levels of government. And since the States by extension have to have a State Constitution that mirrors the Federal Constitution, this same principle bears the same relationship from State to local governments and the people as well.

However, over the last 100 years Congress has done more and more to pull more power towards the Federal government - from pork barrelling special projects to withholding matching funds for Congressionally mandated work when States do not do as Congress wants. (That in itself should be illegal under the Constitution as Congress is in effect bribing the States to give up power and rights.)

We see this again in the DMCA which not only extends Copyright again - such that is it now well beyond the life of even the author's children and perhaps grandchildren - but makes it easier for corporations to shutdown economic activity as illegal when it would otherwise be legal - e.g. putting a weak 'protection' on copying - thereby forbidding otherwise legal activities (e.g. archiving, changing of storage mediums, etc.) in favor of corporate interests.

And no, the ACA does not resolve the health care issues - it just panders more to large corporations. Reform would be requiring insurance companies to pay out based on the service provided, paying out what the doctor specified, and not allowing them to be able to challenge the doctor so long as the doctor acted within the boundaries of their field. Instead, we have more insurance - more paperwork, and more bureaucracy - all of which means that doctor's will have to charge more to cover the administrative costs, and individuals and companies will have to pay more to cover the same insurance since they are now mandated (illegally) to have insurance.

True health care reform would not require individuals to have insurance, but actually accomplish lowering the costs. ACA does not do that for numerous reasons.

SOPA/ProtectIP currently before the Congress are in similar scenarios - pandering to corporate interests at the expense of the people, codifying it in Federal law. One provision would make some actions that were civil issues under the DMCA criminal issues; others essentially allow corporations to wiretap you without any due process.

It will also be interesting to see how SCOTUS rules on immigration. The Federal Government as designed does not have enough power to enforce all the laws it sets out; thereby it needs to work with state and local communities to enforce all laws. As a result all levels of government have the responsibility for upholding the laws of its locality and that of above it. However, the President is presently refusing to enforce some laws and prohibiting localities from doing so as well, claiming only the Federal government has the authority to uphold federal laws, though that is not the case.

True reform will not be possible under Congress stops pandering to corporate interests, and the courts uphold a Federal government of limited powers.

Dec 14, 2011, 12:52 PM

The problem with the critique of the "free market" is that such critique lacks an alternative. It is still the best method of allocating scarce resources.

Every alternative requires some other actor deciding how resources are allocated, and these actors are seldom objective.

Dec 15, 2011, 12:29 AM

For material goods, the free market works.

But for immaterial goods, things are a lot different. Copyright protected works are not 'scarce'. The internet and computers reduce the price for copying these works to the point where giving one person a copy of the work is just as expensive as giving it to everyone in the whole world.

Yet, the neocapitalist viewpoint is that since we CAN attempt to treat these works like property, we "SHOULD". When all the evidence so far seems to indicate that this model is far from the best we can do, if not downright counterproductive.

What this article points out is the fact that the government is in the business of regulating power. More precisely: Preventing and mitigating inequalities in the balance of power. That Freedom, and Finance, are both forms of Power, and need to be balanced against each other, is a fine point that very few people appear to appreciate.

Jan 9, 2012, 6:40 AM
Charles Broming:

I am refreshed by the author's use of history to develop a perspective that is broad and deep enough to provide a lens sufficiently wide-angle to enable us to see the developing pattern of this court's rulings during the prior three decades. The Gilded Age and the Roaring Twenties provide an excellent paradigm for the economic and political conditions that have driven the current SCOTUS's judicial activism since the first Reagan appointees. The irony of this is hilarious, yet, frightening. The Lochner decision and the Courts between 1870 (roughly) and 1936 were activist assaults on the legacy of the Marshall Court. Are we ready for another 20 or 30 years of this trend? I'm not.

Apr 4, 2012, 4:31 PM

If one takes the ultra right idea to its full extent, we end up with those that earn $200K or more and better than anyone below that level. If corporations wish to hire their workers for a $1 an hour, so be it. Those who refuse to work at that rate can live in the streets or the hills, or die of starvation. After all they could have taken the job for $1 per hour but didn't. If there are too many people and some die, so be it--or so they seem to think. After all they got theirs by working hard. Luck or position never had anything to do with it. Just ask Justice Thomas!!! We're going back further than the Gilded age--more like the Medieval ages with lords and slaves--of various caliber. I'm glad I won't live to see it all happen.

Apr 4, 2012, 6:20 PM
Marvin H. Gladstone:

Mr. Dooley is credited with the prescient observation that (notwithstanding its members are appointed and enjoy life tenure) "the Supreme Court watches the election returns."

Apr 4, 2012, 6:34 PM

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