In Epic Systems Corp. v. Lewis, the Federal Arbitration Act offered the court a second-best workaround to Erie's formless wasteland.
Richard Hofstadter wrote a famous essay, The Paranoid Style in American Politics. It is about the recurring tendency of our political actors to allege that there is a vast and powerful conspiracy against the public interest. The Masons were alleged to be at the center of the conspiracy early in the nineteenth century, the Catholics later in the century.
In his opposition to Judge Gorsuch, Senator Sheldon Whitehouse embraces this style of argument. In his opening statement, he asserted that there is a “machine” that helps conservative Republicans get on the Supreme Court and then write amicus briefs to show them which way to rule. He endorses the characterization of the Roberts Court as a “delivery service” for the Republican party and right-wing ideology. How different in terms of respect for judicial independence is calling the Supreme Court a “delivery service” from referring to a judge as a “so-called judge?” Senator Whitehouse claims that this “delivery service” continually offers up cases against the public interest, protecting gerrymandering, money in politics and the rights of corporations against the people.
Like all conspiracy theories, it has a simplicity about it. But its simplicity is delusive because the world is a more complicated place. Law, for instance, is not just about results but about reason for results. Justices, at least if they are doing law, cannot easily be enlisted in a conspiracy with non-legal objectives.
Senator Whitehouse does not entertain the possibility that law rather than participation in a “delivery service” would motivate the justices. For instance, he dismisses the argument that the original constitution protects speech by corporations as a joke, unworthy of serious discussion. But there are powerful reasons in the text and structure of the First Amendment not to distinguish as a matter of coverage between speech by associations, including corporations, and individuals. The First Amendment is unambiguously phrased as a prohibition on Congress and makes no distinctions among associations, corporations, and individuals. Thus, the original the First Amendment public meaning does not discriminate between individuals and organizations
Like others who see conspiracies, he also omits inconvenient facts. He says that the Roberts Court has ruled for corporations in sixteen cases out of sixteen. But it is the Senator who has chosen sixteen cases about corporations which he is counting from a much longer list of cases in which corporate interests are implicated. Talk about selection bias! He ignores, just to take one example, Massachusetts v. EPA where the Roberts Court permitted the EPA to impose costly regulations against carbon dioxide emissions, in fact permitting standing on novel theory. Business interests lost big in that case.
More generally, Jonathan Adler, the editor of the only book devoted to the Roberts Court and business concluded: “Taken together, the analyses in this book suggest that there are aspects of the Court’s approach to business-related cases that are definitely advantageous to business groups, but that this appears to be the result of other doctrinal commitments and legal policy preferences, and not the result of favoritism toward business litigants and their interests. “
In short, the Roberts Court, like other courts, are driven by methodological commitments, not simply political preferences. These commitments may offer grounds for criticism of that Court and for debate over whether Judge Gorsuch shares an approach to judicial decision making that is incorrect. But the Senator’s style of argument impoverishes political discourse, misunderstands the nature of law, and encourages citizens to think of themselves as victims of dark forces they cannot control.