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A Locked iPhone; Unlocked Corporate Constitutional Rights

The Roberts Court, extant for eleven years, has acquired the pejorative moniker, the “Corporate Court.” In the same short time span, the Court has repeatedly landed in the doghouse with constitutional scholars for its blunderbuss use of the First Amendment to invalidate key laws, including those regulating money in politics. (Maybe the Court’s next nickname should be the “Democracy Slayer.”) At times these aspects of ill repute intersect, as in the nearly universally reviled Citizens United decision granting corporations the constitutional right to spend an unlimited amount of corporate money on political ads in American elections.

Empirical studies of the Supreme Court show that both negative reputations are richly deserved. As Judge Richard Posner and his co‐authors showed in 2013, five of the most pro‐business Justices since the mid‐twentieth century served on the Roberts Supreme Court, and Justices Roberts and Alito are the two most pro‐business Justices since 1946. Moreover, a recent study by Harvard Law Professor John Coates showed, “[n]early half of First Amendment legal challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals.”

Unfortunately, the Court’s use of the First Amendment as a deregulatory tool is not unique to its campaign finance cases. The Court’s corporate speech jurisprudence is also grounded in a deregulatory First Amendment, which further undermines the ability of the government to regulate the economic marketplace. Although the unexpected passing of Justice Scalia in early 2016 might reset the path of the Supreme Court away from its pro‐corporate anti‐democratic trajectory, much is contingent on who the new Justice is. In the meantime, as the U.S. Senate stalls on the confirmation process for a replacement Justice, corporate lawyers in the lower courts have shown no reluctance in trying to build on the Roberts Court precedents that have expanded corporate rights in the past decade. A case in point is Apple, Inc.’s tussle with the FBI.