Bench Memos

Law & the Courts

Graetz/Greenhouse Book on Burger Court—Part 3 (Business Speech)

See Parts 1, 2

Some comments on the “Corporations Are People Too” chapter from Michael J. Graetz’s and Linda Greenhouse’s forthcoming The Burger Court and the Rise of the Judicial Right:

1. I’m no fan of what we call the Burger Court, but Graetz and Greenhouse frequently apply a “heads I win, tails you lose” approach to their assessment of the Court’s rulings. When the Burger Court issued rulings they like, it’s because “the American people forced the Court to accept, and in some cases even endorse, massive shifts in public opinion and conduct.” But when, as with expanded First Amendment protections for business speech, they don’t like the rulings, it’s “the ideological commitments of the justices, rather than any public or political movement, [that] forced a transformation of constitutional doctrine.”

2. The realm of commercial speech is an odd one for Graetz and Greenhouse to claim was driven by “the ideological commitments of the justices.” The first case they decry, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), was decided 7-1. Are we really to accept that the ideologically diverse justices in the majority (Brennan and Marshall on the left, Stewart, White, Powell, and Blackmun somewhere in the middle, and Burger on the right) were acting on their ideological commitments in expanding protections for commercial speech?

The charge seems even odder for Graetz and Greenhouse to cast against the “Burger Court” for the 5-4 ruling in Bates v. State Bar of Arizona (1977), where the majority consists of the (corporation-loving?) Brennan, White, Marshall, Blackmun, and Stevens.

Ditto for the third ruling they muster, Central Hudson Gas & Elec. Corp. v. Public Service Comm’n (1980), where only Rehnquist (whose views they celebrate) was in dissent.

3. It’s very telling that Graetz and Greenhouse find it “unexpected[]” and troublesome that a ruling that they approve of that arose in the context of commercial advertising about abortion would be applied to commercial advertising about other matters. It would seem that they don’t understand what a legal principle is.

4. In this same chapter, the authors decry as even more nefarious the Court’s rulings on campaign-finance restrictions and corporate speech in Buckley v. Valeo (1976) and First National Bank of Boston v. Bellotti (1978). The voting alignment across various issues in Buckley is too complicated to summarize concisely, but Brennan was in the majority on all points. Bellotti was another 8-1 ruling with only Rehnquist in dissent.  So again, these seem odd cases in which to allege, without more, that justices of differing ideologies in the majorities were acting on their “ideological commitments.”  [Update: I incorrectly stated in the initial version of this post that Bellotti​ was an 8-1 decision; it was 5-4. I am therefore deleting my fourth point.]

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