Chevron Corp. v. Donziger: A Loss of Public Confidence in the Integrity and Impartiality of the Judiciary

The United States is no longer a republic. It is a plutocracy where political power derived from wealth is devoted to protecting wealth. Corporations convert their immense wealth into political power which is then converted into judicial power which, in turn, protects them.

Corporations have both political and judicial power.

Historically, corporations have sought political power. They donated money to political campaigns in order to elect and influence legislators and, in many cases, directly draft favorable legislation. 

There is no evidence the framers intended the Constitution to protect corporations. Nonetheless, the U.S. Supreme Court ruled that the Bank of the United States did have the right to sue in federal court. (Bank of the United States v. Deveaux, 9 U.S. 61 (1809)). It was the first U.S. Supreme Court case to examine corporate rights and it set an important precedent for corporations to acquire the legal rights and responsibilities enjoyed by natural persons.

Since 1809, corporations have also sought to increase their judicial power. The logic is that in the unlikely event corporations fail to sufficiently control the Congress then the federal judiciary will protect them.

The Powell Memorandum

Corporate seizure of the federal courts started in earnest with Lewis Powell, a corporate attorney who was nominated to the U.S. Supreme Court by President Nixon. Just prior to joining the high court in 1971, Powell, then a board member of tobacco giant Philip Morris, wrote a memorandum to the Chamber of Commerce outlining a program for the political mobilization of business. Powell believed reformers were unfairly targeting American business and his memorandum was a call to arms for business leaders to fight back to preserve the free market. He called on business interests to pack the federal judiciary with corporate-friendly judges.

In 1978, in First National Bank of Boston v. Bellotti, Justice Powell transformed his memorandum into constitutional doctrine. In Bellotti, the U.S. Supreme Court for the first time ruled explicitly that corporations had a right to spend money on at least some political campaigns. In Bellotti, the issue was whether corporations could make political expenditures to promote or oppose ballot measure campaigns.

Writing for the Court, Powell wrote that the issue was not whether corporations had free speech rights but whether the content of the corporations’ speech was political. If so, Powell explained, then the speech was protected regardless of who the speaker was. 

Citizens United

Although the Bellotti ruling only applied to ballot measure campaigns, Powell’s underlying approach to the First Amendment – that it protected the content of speech regardless of the speaker’s identity – would eventually overwhelm Bellotti’s limitations.

In 2010, the U.S. Supreme Court landmark decision in Citizens United v. Federal Election Commission vastly expanded the rights of corporate entities and the super-wealthy to spend or invest their money to influence political elections and deepened the corrupting electoral influence of big money. The court said that corporations have the same First Amendment right as individuals to spend money on election advertisements. The decision triggered a new era of “dark money” – hidden, anonymous funds used to support candidates and skirt campaign disclosure laws. 

In Citizens United, the court’s opinion echoed Powell’s principle that the identity of the speaker is irrelevant under the First Amendment. “Political speech is indispensable to decision-making in a democracy and this is no less true because the speech comes from a corporation rather than an individual.” To promote democratic self-government, government could not limit corporate influence in elections.

So long as the U.S. Supreme Court adheres to the view that corporate speech is no different than any other speech, any reform designed to limit the voice of corporations in the electoral process will likely fail. 

Americans for Prosperity Foundation v. Bonta

On July 1, 2021, in Americans for Prosperity Foundation v. Bonta, the U.S. Supreme Court ruled 6-3 that California cannot require nonprofits to disclose their donors to the state, a ruling that will have a sweeping effect on campaign finance disclosure rules and so-called dark money groups.

The Bonta ruling could set a precedent that any donor transparency requirements are unjustified – including those governing donations to political campaigns, candidates, and PACs. As Justice Sonia Sotomayor writes in a dissenting opinion, “today’s analysis marks reporting and disclosure requirements with a bull’s-eye.” Regulated entities who wish to avoid their obligations can do so by vaguely waving toward First Amendment “privacy concerns.” Corporations and wealthy individuals now have far more ability to influence American politics and, by extension, judicial decisions in secret – and that ability is only likely to grow as judges rely on the decision in Bonta to strike down other donor disclosure laws.

Now, corporations have the ability to raise the enormous amount of money required to finance the selection, grooming, nomination, and confirmation of U.S. Supreme Court justices, court of appeals judges, and district court judges.

How Federal Judges are Created

In order to fully appreciate the extent to which corporations are able to control the U.S. federal judicial system, it necessary to first understand how judges are appointed.

U.S. Supreme Court justices, court of appeals judges, and district court judges are nominated by the President and confirmed by the United States Senate, as stated in the Constitution. The names of potential nominees are often recommended by senators or sometimes by members of the House who are of the President's political party. Article III of the Constitution states that these judicial officers are appointed for a life term.

The president, the members of congress, and the federal judges (who are nominated by the president and confirmed by the senate) are all products of the same political system. It’s irrational to believe that federal judges, who are born out of a political process, do not have partisan affiliations.

Historically, Republican Presidents tended to nominate conservative judges who exercise a shared philosophy of judicial restraint by following our laws as written. Democratic Presidents tended to nominate liberal judicial activists who legislate from the bench and “shape the law.” Democratic federal judges believe in a “living

Constitution,” which can be interpreted to mean whatever they want it to mean without being formally amended.

Senator Sheldon Whitehouse (D-RI) argues that the Federalist Society chooses, grooms, ensures the nomination, and finances the confirmation of Republican, ultra-conservative federal judges who represent corporate America, not the American people. While this may be true, Senator Whitehouse fails to point out that Democratic Presidents do the same. President Biden nominates federal judges based on their political philosophy, ethnicity, and gender. The difference being that the republicans are better financed, more focused, and better organized than the democrats. Regrettably, neither Republican nor Democratic Presidents nominate

the best and brightest to the federal bench. They nominate corporate ideologues.

Two examples of how corporations cash in on their political spending and lobbying dollars.

(1) Multidistrict Litigation (“MDL”)

The primary purpose of MDL is to maximize judicial efficiency in exchange for limiting the liability of the corporate defendant. Justice for the tens or hundreds of

thousands of victims of a corporate mass tort is rarely a consideration. MDL has been described as the U.S. federal judicial system running a protection racket for corporations.

(2) Shadow Dockets

Unlike the Court’s typical “merits” docket decisions – which involve oral arguments, thorough briefing, and opinions explaining the Court’s legal reasoning – U.S. Supreme Court justices issue shadow docket decisions with little opportunity for interested parties to weigh in and with little or no explanation for the justices’ reasoning. Shadow docket decisions are often unsigned and just as often delivered at odd hours when the public won’t notice them.

It’s impossible to hold federal judges accountable.

An investigation of a miscreant federal judge, by the Chief Judge of a United States court of appeals (which is extremely rare and laughable if it does occur) or as a result of an impeachment proceeding initiated by the U.S. House of Representative, is farcical. 

“I retire,” is all a miscreant federal judge needs to say in order to terminate the investigation and evade punishment under 28 U.S.C. § 351-364 or impeachment by the Congress. Moreover, if he or she retires at age 65 or later, a pension for life is guaranteed.

Since 1803, the U.S. House of Representatives has impeached only 15 judges and only 8 of those impeachments were followed by convictions in the Senate. Justice Samuel Chase is the only Supreme Court Justice the House has impeached, and in 1805 the Senate acquitted Chase.

U.S. Supreme Court justices, court of appeals judges, and district court judges, with life tenure, are accountable to nobody and they know it. Judges Kaplan and Preska in the Chevron Corp. v. Donziger,et al. case make a mockery of our justice system, ignore the rule of law, and thumb their noses at the Code of Conduct for United States Judges because they know that the greatest punishment they could ever receive would be an early retirement with a guaranteed pension for life.