Earlier this year, the Supreme Court sided with a consortium of business groups and red-state governments in their challenge to the Occupational Safety and Health Administration’s vaccine-or-test mandate. At issue in this case was whether our federal government has the authority to require basic public-health measures in large private workplaces during a pandemic that already has killed more than 800,000 Americans. In striking down this workplace safety rule and inviting challenges to future agency action, the Court continues a longstanding pattern wherein our judiciary regularly intervenes into the democratic process to empower corporate interests and hobble the state’s regulatory capacities.
This distinctive feature of the American political economy is the focus of recent chapter from one of us (Thelen), who—writing with K. Sabeel Rahman—described a decades-long, multi-front campaign by organized business interests to use interventionist federal and state courts to advance their policy goals. Courts in the United States have served to secure key victories that have shaped the trajectory of American capitalism. Strategic interventions have allowed organized business interests to enhance corporate power (e.g., Citizens United), weaken countervailing forces (e.g., Janus), and undermine the state’s own regulatory capacities (e.g., Business Roundtable v. SEC). One notable example among many is the way in which business interests harnessed the power of the courts to sanction the expanded use of mandatory arbitration clauses to undermine consumer, labor, and civil rights.
That business interests have used the judiciary to tilt the playing field to their advantage will not be news to most readers of this Blog. The LPE movement owes its origin to an acute understanding of precisely this dynamic. But scholarship on American courts, including both legal academic and political science research, does not always emphasize the degree to which the outsized role played by courts in our system stands out as a comparative outlier. The tremendous—and practically unreviewable—power that is routinely exercised by our judiciary is unique among peer countries, as a matter of both constitutional design and historical practice.
As Rahman and Thelen document, “Compared to other rich democracies, the American judiciary is more powerful, more politicized, and more directly involved in shaping outcomes in the political economy.” In the UK, for example, the principle of “parliamentary sovereignty” means just what it says—that, as the country’s supreme legal authority, the laws passed by Parliament cannot be struck down by the courts. In other rich democracies, regulatory issues that in the United States are litigated in the courts are instead managed by professional bureaucracies or government-appointed expert bodies, or are settled through corporatist negotiations. Far from being an essential feature of stable democracies, or necessarily implied from the structure of a constitution allocating power among separated branches, our strong form of judicial review reflects one choice among many available institutional arrangements—and a comparatively unusual one, at that.
But it is not simply the power of courts in our system that stands out as anomalous among peers: our judiciary also is unique in its institutional design, in ways that have significant consequences for economic and political outcomes. Most other advanced democracies contain mechanisms designed to avoid the politicization of the judiciary, as for example in Germany where appointment to the Federal Constitutional Court requires a supermajority (2/3) vote in both houses of parliament. By contrast, our constitutional appointment mechanism for federal judges provides final say to a malapportioned Senate where representation is skewed toward the sparsely populated states dominated by white rural voters. The United States also stands alone in guaranteeing judicial tenure until death or choice, which gives judges the opportunity to select which political party will have the opportunity to appoint their successor. And no other rich democracy replicates the United States’ system of politicized judicial elections at the state and local levels—which invites the participation of moneyed interests affected by their rulings.
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