WASHINGTON — Forgive me for not feeling charitable toward John Roberts’ Tiny Tim routine this holiday season. The chief justice invoked both Scrooge’s ghosts and George Bailey’s guardian angel in the first sentence of his annual report on the federal judiciary, released on New Year’s Eve, in which he begs for more money for the courts. “Both ‘A Christmas Carol’ and ‘It’s a Wonderful Life’ have happy endings,” he writes. “We are encouraged that the story of funding for the federal judiciary — though perhaps not as gripping a tale — will too.”
I agree with Roberts on the merits, that the judiciary “consumes only the tiniest sliver of federal revenues,” and that it deserves more. But there is rough justice here: Roberts and his fellow jurists are being starved by a system that they, in large part, created. No, Roberts didn’t draft the “sequester” or the other budget-cutting measures that have caught the federal judiciary in the same net as other federal programs — everything from Head Start to Homeland Security.
But his conservative majority has made the Roberts court the most pro-business court since the 1930s, and he and his fellow justices have done a great deal to expand the rights of the wealthy and the powerful — most notably by allowing them to spend unlimited sums to purchase lawmakers and to sway elections.
The wealthy and corporate interests have responded by buying a Congress determined to shrink government and to weaken its reach — including that of the courts. This is the consequence of Roberts’ judicial philosophy. This, Mr. Chief Justice, is what limited government looks like. A widely cited study published last year in the Minnesota Law Review ranked the 36 justices who served on the court since 1946 and found that Roberts and Justice Samuel Alito were the most pro-business of all.
The other three conservatives on the current court were also in the top 10. “Whether measured by decisions or justices’ votes, a plunge in warmth toward business during the 1960s (the heyday of the Warren Court) was quickly reversed; and the Roberts Court is much friendlier to business than either the Burger or Rehnquist Courts,” the study concluded. “The court is taking more cases in which the business litigant lost in the lower court and reversing more of these. … The Roberts Court also has affirmed more cases in which business is the respondent than its predecessor courts did.”
The most important of all these rulings was 2010’s Citizens United, which essentially allows unlimited spending in elections by corporations and others with means. These independent expenditures expanded from $144 million in 2008 to $1 billion in 2012, according to the Center for Responsive Politics, a campaign-finance watchdog. Independent expenditures in the 2014 cycle are running ahead of the 2012 level and triple the rate of spending in 2010. The political system, already stacked in favor of wealth, has been submerged in the new spending.
Consider two of the top items in Thursday’s edition of the closely watched Politico Playbook (“presented by the U.S. Chamber of Commerce”): “Social conservatives make big money plans,” and “Americans for Prosperity launches seven-figure ad campaign.” Both are “super-PACs” made possible by Citizens United ruling.
The unchecked flood of cash goes to fiscal conservatives, social conservatives and even liberal groups, but the bulk goes toward electing candidates devoted to shrinking the federal government. That, and partisan redistricting also blessed by the Supreme Court, has created a situation in which Republican lawmakers in Congress know that they’ll only lose their jobs if they get beaten in primaries for being insufficiently militant about shrinking government. Hence the fiscal cliff, sequestration, debt-limit showdowns, endless votes to repeal Obamacare and the government shutdown — so much so that business interests, which bankrolled the tea party, are beginning to have buyer’s remorse.
“The United States courts owe their pre-eminence in no small measure to statesmen who have looked past the politics of the moment and have supported a strong, independent, and impartial judiciary,” Roberts wrote. Arguing that the courts had already cut costs to the bone, he spoke of dire consequences if funding is not increased: “fewer public defenders … commercial uncertainty, lost opportunities … a genuine threat to public safety.”
And also less enforcement by courts of regulations and protections for consumers, workers and shareholders. From the point of view of those who buy elections, that’s a desirable result. Roberts may see his fellow jurists as victims of a Dickensian system. But they are the authors of this Christmas carol.