Last week, one day after United Nations scientists issued another alarmabout irreversible damage from the climate crisis, the increasinglyunpopularSupreme 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 alreadysignaling they agree with climate deniers arguments.
If the court does succumb topressure from oil baron Charles Kochs 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 academicpreprint 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-expenses-paid conferences bankrolled by corporate intereststo 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 Institute for Advanced Study in Toulouse 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 whoinsistedthat the high court is not inherently rigged in favor of corporate interests. The studys conclusions seem to confirma recent pollshowing many Americans believe Supreme Court justices are making decisions based on political ideology.
Those poll numbers prompted the recentpublicitycampaignby Supreme Court justicesto 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 Bidens court nominee, Ketanji Brown Jackson.
Though the studys findings are stunning, they are not an anomaly they echoseparate data showing the courts shift toward siding with the opinions of the US Chamber of Commerce. That powerful corporate lobby group spearheaded campaigns to install right-wing judges on the court including Chief Justice John Roberts, the Chambers former attorney which has resulted in the court issuing far more rulings in favor of Chamber amicus briefs.
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 plaintiffsarguedthat 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 its dealing with an issue as massive as climate change, its hard to see what costs wouldnt be justified, West Virginia solicitor general Lindsay Seetold conservative justice Samuel Alito, implying that preserving the EPAs 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 analyseswhen 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 positsthat economic tools provide the best framework for consistent legal reasoning.
One of its leading proponents was Henry Manne, who iscreditedwith 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 likeweapons magnate John Olin.
A1980Washington Postarticlefound 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 2013Center for Public Integrity studyfound 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 United States had attended. Even prominent liberals like Justice Ruth Bader Ginsburg and Senator Elizabeth Warren (D-MA) had gracedthe seminars. Warren actually met her husband at a Manne event.
Mannes hub of economic-focused judicial activism flourishes today at George Mason University (GMU), as part of the private schools Antonin Scalia Law School. In recent years,GMU has been heavily fundedby Charles Koch and his foundations along with other business interests. Last year, GMUreceived more Koch moneythan any other school in the country.
Thanks to the efforts of Manne and others, the teachings of law and economics havetaken rootat 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 Instituteattendee. Justice Amy Coney Barrett was alaw and economics fellowat 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 repeatedlyaided 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 oncenoted: 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 US Court of Appeals for the First Circuit, ruled in favorof 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.
Thesix 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 societys first major conference in 1982, among the invitees were Judge Robert Bork of the DC Circuit Court of Appeals, who has been creditedwith 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 Societys cochairman Leonard Leo was former President Donald Trumps top judicial adviser, and leadsa dark money network that has run confirmation campaigns boosting the GOPs Supreme Court picks since 2005.
Last month, Justice Neil Gorsuch headlined a Florida event for the Federalist Society. Media wasnot allowedat the event and it isunclearif 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.
