How Pro-Business “Law And Economics” Interests Pushed The Courts Right

Last week, one day after that United Nations scientists issued another alarm about “irreversible” damage from the climate crisis, the increasingly unpopular Supreme Court began considering a landmark case that could permanently restrict the Environmental Protection Agency (EPA)’s power to regulate greenhouse gas emissions — and many of the conservative justices are already signaling they agree with climate deniers’ arguments.

If the court does succumb to pressure from oil baron Charles Koch’s network and defangs the EPA, it would be a monumental defeat for climate activists and the future of the planet — but it would be a culminating victory for a legal network that has successfully shifted the judiciary to the hard right.

A newly updated academic preprint details the success of the so-called “law and economics” movement, which seeks to apply free-market principles to legal analysis, and how it used all-expense-paid conferences bankrolled by corporate interests to indoctrinate a generation of judges — particularly in cases involving regulatory agencies, like the EPA.

The data from researchers at Columbia University, ETH Zurich, and the Toulouse Institute for Advanced Studies found a direct correlation between attendance at these seminars by judges and those judges handing down conservative verdicts on an array of topics from environmental regulation, antitrust action, and even criminal justice.

“Economics-trained judges significantly shift legal outcomes in U.S. courts,” the study found. “After attending economics training, participating judges use more economics language in their opinions, issue more conservative decisions in economics-related cases, rule against regulatory agencies more often, favor more lax enforcement in antitrust cases, and impose more/longer criminal sentences.”

The study specifically noted that judges who attended the conferences “subsequently are more likely to vote against regulatory agencies, in particular on the labor and environmental issues that early law and economics focused on.”

Researchers concluded that the conferences “could account for between a quarter and a third of the rise in (economic) judicial conservatism” over several decades.

The findings contradict the assertions of retiring Justice Stephen Breyer — a law and economics acolyte — who insisted that the high court is not inherently rigged in favor of corporate interests. The study’s conclusions seem to confirm a recent poll showing many Americans believe Supreme Court justices are making decisions based on political ideology.

Those poll numbers prompted the recent publicity campaign by Supreme Court justices to defend the legitimacy of the court and insist that the panel is not influenced by politics or ideology. That theme could resurface in the upcoming confirmation hearings for President Biden’s court nominee, Ketanji Brown Jackson.

Though the study’s findings are stunning, they are not an anomaly — they echo separate data showing the court’s shift toward siding with the opinions of the U.S. Chamber of Commerce. That powerful corporate lobby group spearheaded campaigns to install right-wing judges on the court — including Chief Justice John Roberts, the Chamber’s former attorney — which has resulted in the court issuing far more rulings in favor of Chamber amicus briefs.

Luxury Conferences For Judges

In the case the Supreme Court began considering last week, West Virginia v. EPA, the plaintiffs are Republican attorneys general arguing that the EPA does not have the authority to regulate planet-warming greenhouse gas emissions from the energy sector.

Though the case revolves around separation-of-powers arguments, Republican plaintiffs argued that allowing the EPA to regulate greenhouse gas emissions would impose too big a cost on society.

“If EPA is looking at the national or grid-wide level and if it’s dealing with an issue as massive as climate change, it’s hard to see what costs wouldn’t be justified,” West Virginia solicitor general Lindsay See told conservative Justice Samuel Alito, implying that preserving the EPA’s authority would give it too much power to impose economic costs on the country.

That argument about cost is what the law and economics movement is all about — getting judges to consider economic cost-benefit analyses when they are ruling on legal questions.

The movement grew out of the so-called Chicago school of free market economics, first made famous by Milton Friedman. The law-and-economics outlook posits that economic tools provide the best framework for consistent legal reasoning.

One of its leading proponents was Henry Manne, who is credited with opening the door for the application of economic principles to corporate law in the 1950s and 60s. In 1976, he launched a seminar series that covered judges and their families’ “expenses for a beachside hotel stay,” as recounted by the researchers behind the new preprint.

From the beginning, the movement was bankrolled by corporations and powerful business interests like weapons magnate John Olin.

A 1980 Washington Post article found that “within the past two years alone, at least 33 of the 105 companies” funding the Manne conferences “have been involved in 59 major, not to mention minor, federal court cases.” A 2013 Center for Public Integrity study found that “between July 2008 and 2012, about 185 federal judges attended more than 100 judicial education seminars, sponsored by conservative foundations and multinational corporations like ExxonMobil, Pfizer and BP.”

At the Manne conferences, lecturers like Friedman would teach jurists about free market economic principles. By the time the program ended in 1999, nearly half of federal judges in the U.S. had attended. Even prominent liberals like Justice Ruth Bader Ginsburg and Sen. Elizabeth Warren (D-Mass.) had graced the seminars. Warren actually met her husband at a Manne event.

Manne’s hub of economic-focused judicial activism flourishes today at George Mason University (GMU), as part of the private school’s Antonin Scalia Law School. In recent years, GMU has been heavily funded by Charles Koch and his foundations along with other business interests. Last year, GMU received more Koch money than any other school in the country.

Acolytes On The High Court

Thanks to the efforts of Manne and others, the teachings of law and economics have taken root at the heart of American jurisprudence. Law schools increasingly hired economists as faculty members. By 1990, the top law schools in North America and some in Europe employed at least one economist. Yale Law School professor Bruce Ackerman even called the law and economics movement “the most important development in legal scholarship of the twentieth century.”

Advocates of the economics approach now populate the Supreme Court. Justice Clarence Thomas was a Manne Institute attendee. Justice Amy Coney Barrett was a law and economics fellow at George Washington Law School early in her legal career.

Breyer himself has been an influential adherent of law and economics throughout his career. Unsurprisingly, he repeatedly aided corporate power. In the 1970s, for example, while serving as counsel to the Senate Judiciary Committee, Breyer helped kill the Civil Aeronautics Board that set airfares and approved service routes, believing it stifled natural competition in the market. Following this “deregulation,” the industry experienced turbulence, consolidation, and price increases for consumers.

George Washington University law professor and former member of the Federal Trade Commission William Kovacic once noted: “As a court of appeals judge, Justice Breyer was instrumental in setting doctrinal trends often ascribed to the influence of the Chicago School.”

In one antitrust case Kovacic was referencing, Breyer, then sitting on the U.S. Court of Appeals for the First Circuit, ruled in favor of a nuclear plant pipe systems manufacturer that had entered into a contract with a parts manufacturer after it undercut a competitor on price. The ruling cleared the path for predatory pricing, a practice by which companies lower prices to put their competition out of business.

The six conservative justices also have ties to the right-wing Federalist Society, for which law and economics movement benefactor Olin provided seed money when it was still a student group with chapters at Yale, Harvard, and the University of Chicago. At the society’s first major conference in 1982, among the invitees were Judge Robert Bork of the D.C. Circuit Court of Appeals, who has been credited with introducing economic thinking to antitrust in the 1960s, and Richard Epstein, another law and economics advocate.

All of the conservative Supreme Court justices are current or former Federalist Society members. The Federalist Society’s co-chairman Leonard Leo was former President Donald Trump’s top judicial adviser, and leads a dark money network that has run confirmation campaigns boosting the GOP’s Supreme Court picks since 2005.

Last month, Justice Neil Gorsuch headlined a Florida event for the Federalist Society. Media was not allowed at the event and it is unclear if he was financially compensated for the appearance.

Whether or not the conservative justices will apply a laissez-faire economic approach in the West Virginia case remains to be seen, but considering the intensity of the climate crisis, the stakes have never been higher.

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