The neoliberal conquest of the Supreme Court

Abstract

Neoliberalism is an anti-democratic ideology. It takes decisions about the allocation of scarce resources out of the hands of public institutions and places them in the hands of private actors. Despite a distrust of democratic institutions immanent to neoliberalism, its reach within those same institutions reveals potent ideological lessons. Even the courts, ostensibly a bulwark against anti-democratic impulses, have incorporated neoliberal arguments into their rulings. As the courts have adopted neoliberal discourse they have reimagined society as a market populated by consumers. Accordingly, in this article we examine five Supreme Court rulings that illuminate how the publicly interested citizen is replaced by the self-interested consumer as the basic unit of democracy. We argue these rulings rhetorically predispose voters to think of social problems in the neoliberal language of privatization and profit through three themes: (1) elevating the market, (2) expanding the market, and (3) advertising the market. Broader implications are discussed including a more comprehensive explanation for how neoliberal judicial discourse has played a vital role in orienting the public to accept policies designed to concentrate public resources and decisions into the hands of private actors.

Since the 1970s, neoliberalism ascended from the fringes of political and economic thought to become a dominant ideological touchstone. How did an economic and political philosophy—one that was once so thoroughly rejected by so many—reconcile its inherent democratic contradictions? A tremendous amount of scholarly energy has focused on explaining neoliberalism’s widespread acceptance; however, few studies have explored the neoliberal conquest of the American court system. When scholars have explored that relationship, they have focused on particular rhetorical situations at play within specific judicial opinions, marking the cultural and political contexts through which the court must negotiate public perceptions and legal precedent (Bruner & Balter-Reitz, 2013; Conway, 2003; Hasian, 1997; Tell & Miller, 2012; Wood, 2005). Recognizing how neoliberalism operates as an ostensibly economic ideology that inserts itself into the logics of other realms, this essay offers a fresh explanation for its ascension by exploring how the US Supreme Court adjudicates amidst a neoliberal framework. Given the explanation that neoliberalism is not simply an economic framework but an overarching political rationality encourages an analysis of the ways in which legal institutions such as the US Supreme Court help construct and protect this rationality. Thus, the purpose of this article is to examine the symbolic resources that facilitated the circumscription of democracy by neoliberalism through the rhetoric of the US Supreme Court.

This essay does not set out to find causal relationships between neoliberal economic urgings and democratic practices, nor does it seek sites of ideological brainwashing. To assume that neoliberalism simply tricked everyone is unsatisfying. That is not how communication works. Instead, persuasive, neoliberal arguments must have emerged in alignment with shifting political realities to reshape definitions and plead particular causes (Zarefsky, 2004). The techniques of rhetorical invention will be especially useful for this inquiry. Rhetorical invention is concerned with the process of discovering where sense-making mechanisms align with the social structures and patterns already in public circulation (Liu, 2002). Therefore, whenever ideas like neoliberalism move off the fringes so completely and so forcefully, the symbolic resources, cultural fictions, and formal plot lines facilitating such movement can illuminate larger conceptual lessons about our social context far beyond a singular case study. In other words, neoliberalism is not solely an economic project. Rather, it is primarily discursive, as it seeks to symbolically shape our public conversations and the knowledge those conversations produce. Accordingly, neoliberalism is ideological, as it puts that knowledge production to work constructing and affirming hierarchies of power benefiting the elite at the expense of the masses. Consequently, when this essay describes neoliberalism’s agency in this article, it is referring to a specific set of symbols shaping discourse to achieve its ideological aims.

For the analysis, this essay focuses on five US Supreme Court cases: San Antonio Independent School District v. Rodriguez (1972), Sorrell v. IMS Health (2011), Bates v. State Bar of Arizona (1977), Citizens United v. Federal Election Commission (2010), and Dandridge v. Williams (1970). The cases chosen were selected for their rhetorical, legal, and historical significance. The majority and concurring decisions give insight into the development and evolution of neoliberal rhetoric in US Supreme Court decisions. Each decision represents a significant break with previous legal scholarship, rolling back progressive legal precedents and rolling out an alternative neoliberal vocabulary. Starting in the 1970s, the US Supreme Court reversed rulings that upheld an active role for government to address social inequalities and protect marginalized communities (MacLean, 2017). Over the years, more and more arenas of public life were subjected to the mandates of the market. It is significant that the cases cover a wide span of time. Forty-one years separate the Dandridge v. Williams (1970) and Sorrell v. IMS Health (2011) decisions. Selecting cases across five decades illustrates the meaningful and lasting change in US Supreme Court rhetoric. This is not a passing fad, nor is it merely the influence of a few conservative Justices. Taken together, these cases lend insight into a rhetorically significant change in US Supreme Court jurisprudence.

The essay begins by describing the relationship between neoliberalism and American democracy. The essay then details neoliberalism’s emergence in the aforementioned US Supreme Court cases. These cases illuminate three themes effectively facilitating the alignment between neoliberal jurisprudence and the wider social conditions: (1) elevating the market, (2) expanding the market, and (3) advertising the market. The essay concludes with a short discussion of the larger conceptual lessons revealed by these findings for the American legal system and scholars of communication and the public sphere.

Neoliberalism and the circumscription of American democracy

Neoliberalism is often defined as an economic and political philosophy that promotes small government, a privatized collective sphere, a deregulated market economy, and lower corporate taxes (Klein, 2014). But that definition is not as much wrong as it is incomplete. References to “small government,” “free markets,” and “deregulation” cover a more cynical neoliberal project. Neoliberalism is primarily focused on what Sonia Amadae (2016) called “conjoint depletion.” Unlike classical liberal economic thought aimed at shared maximization through voluntary economic interactions, neoliberalism’s conjoint depletion sees human relationships as zero-sum economic interactions. It assumes we are all self-serving economic actors who will cheat, steal, and break our agreements (if we can get away with it). Economic relationships are always and only a product of coercive bargaining and leveraged enforcement. ¹ Amadae conceded some common ground between neoliberalism and classical liberal thought, but she used this conceptualization of conjoint depletion to emphasize an important divergence: in neoliberal thought, there is no “normative pole external to the central logic of strategic self-interest” (p. 187). Consequently, neoliberalism encourages a hollowed out public sphere and a minimal role for the state. Prominent neoliberal proponent Milton Friedman (1962), for instance, argued that the state’s role should be limited to preserving law and order, enforcing contracts, protecting private property, supervising the issuance of currency, and fostering competitive markets. Extending Friedman, Charles Koch more recently suggested that government’s only legitimate function was to “serve as a night watchman, to protect individuals and property from outside threat, including fraud. That is the maximum” (Mayer, 2016, p. 107).

However, such a conceptualization leaves neoliberalism with a glaring arithmetic problem. As Robert Asen (2017) argued, the invocation of democracy can stand as a constitutive barrier against the oligarchic aims of neoliberalism. In any representative democracy, the majority can always vote for robust state interventions in the economy and more redistributive economic policies in support of their collective interests. More specifically, this is precisely what American voters did through most of the twentieth century. Neoliberalism was a political loser. Many Americans knew it to be a cruel ruse designed to empower the rich. Neoliberalism also neglected to account for collective behavior that transcended market arrangements. Keynesian central planning, in particular, made clear some of the positive-sum values that emerged from social interdependence, compassion, and democratic solidarity. Much of the American economic growth of the 1950s and 1960s was facilitated by a mixed economy where economic policy combined active state intervention, well-regulated markets, and expanding civic institutions—the antithesis of neoliberalism. Because neoliberalism sought to tip the balance of power in the favor of the elite, the American democratic tradition limited its widespread acceptance, and neoliberalism struggled to come off the margins into mainstream political and economic thought. Even neoliberalism’s own advocates doubted its widespread acceptance. In the United States, the expansion of the voter franchise in the 1960s and 1970s, along with the elimination of poll taxes and literacy tests, produced both higher turnout and increased welfare spending (MacLean, 2017). And the more American voters who benefited from government spending, including students and young people, the working-class, and black Americans, the less likely neoliberalism’s vision would be accepted. Democracy remained a millstone tied around neoliberalism’s neck.

For neoliberalism’s proponents, the American legal system looked to be an attractive alternative site of intervention. Rather than having to manage the vagaries of working-class voters, parties bosses, and electoral politics, neoliberal advocates could turn to the American courts to quickly and forcefully transform their economic desires into political realties (Teles, 2010). The legal system was also attractive because neoliberal advocates had no other options. As Steven Teles (2010) wrote, the reputation of tradition conservative institutions in America was at a cultural and political low point in the 1950s and 1960s. Political parties, and even most CEOs and business executives, were thought by neoliberal advocates to be too short-sighted to withstand the democratic pressures of the American public. Even likely neoliberal allies could not be counted on because they were all so ready to cut deals with the “statists” to either benefit their short-term financial interests or—in the case of American Republican politicians—increase their reelection prospects.

The American legal system presented its own barriers, however. During the 1950s and 1960s the legal profession and law schools were mainly controlled by progressive liberal thought which limited neoliberalism’s ambitions. No legitimate alternative critique of legal liberalism existed (Teles, 2010). America’s highest court epitomized neoliberalism’s uphill battle. In particular, the Warren Court (1953–1969) reflected a condition antithetical to the acceptance of neoliberal discourse as it assumed responsibility for operating as the legal arm of state interventions. The Warren Court reflected progressive legal mechanisms that embraced the role of an activist state and placed equality over liberty as a constitutional priority (Teles, 2010). As the antithesis of neoliberalism, the Warren Court assumed a constitutional responsibility to directly intervene in social and economic issues, including cases of racial discrimination, the separation of the church and state, environmental laws, consumer protections, and later, sexual privacy (Winkler, 2011; Zeitz, 2018). The progressive liberalism of the Warren Court contributed to a legal environment were the court took as axiomatic the need to justify law in terms of its impact on society’s most marginalized (MacLean, 2017).

The activist aims of the Warren Court were also affirmed in the nation’s larger historical moment. After America weathered the Great Depression, defeated fascism, and began enjoying massive postwar economic growth, the conditions were primed for a widespread belief in robust, active government interventions to provide economic opportunity for all Americans and sand down the rough edges of free market capitalism (Zeitz, 2018). American public knowledge and beliefs were marked by collective confidence—even hubris—that facilitated the restructuring of the federal governing to aid ordinary Americans, not the just wealthy.

However, as the golden age of liberal democracy transformed into the turmoil of the Long Sixties—and lawlessness, crime, murder, and urban riots (along with welfare spending) increased—the Warren Court appeared increasingly out-of-step with a more fearful American perspective. A new constituency of increasingly affluent (and increasingly fearful) White Americans was encouraged to combine ballooning welfare spending, crime, and civil unrest with liberal social and economic policies. Neoliberalism took advantage. It sought to redress progressive legal assumptions by claiming that since the 1930s, and especially at the height of the Warren Court in the 1960s, American courts had adopted an illegitimate activist mindset that placed the constitution in exile (MacLean, 2017). Neoliberal advocates hoped to put that progressive genie back in the bottle. They argued for a more limited role for the federal courts in public policy, and they portrayed the courts as one more example of an activist conspiracy among liberal intellectuals, complicit media, elected leaders, and the intellectual establishment in the academy (MacLean, 2017). Neoliberal advocates needed to change the accepted vocabulary propping that assumption up, and then use that momentum to mobilize, organize, and spread a counter-message. Furthermore, neoliberal advocates sought to shift the law’s primary emphasis from equality to a particular version of liberty aligned with their interests.

Neoliberal advocates hoped that after the turmoil of the Long Sixties, their arguments could hail the disparate enemies of progressive Keynesian politics into an audience keen on reforming the courts. We know that some corporate elites were weary of the American legal system because it legitimized and accelerating the expansion of an anti-corporate regulatory state. But in accordance with the demands of rhetorical invention, neoliberal advocates hoped a larger context marked by the diffusion of suspicion toward legal liberalism could seep out beyond corporate elites. For example, in the late 1960s and 1970s ranchers and farmers in the American West became suspicious of what they saw as federal encroachment on their land; energy and mining interests hated legal constraints on their extractive aims on federal lands; American southern racists resented legal mandates to desegregate; American northern racists hated forced busing; and many religious conservatives were enraged by the courts sanctioning of abortion and limits on school prayer (Teles, 2010). Neoliberalism aligned its central message with a context marked by growing distrust of the American legal system across these factions. The context was ripe, in other words, for neoliberalism’s non-democratic intervention in the courts.

To oppose the entrenched dominance of progressive legal liberalism, neoliberalism sought to roll back the scope of government intervention into economic arenas, even to the point where courts could be charged with striking down measures passed by voters and supported by elected representatives (MacLean, 2017). Herein lies the circumscription of democracy established by neoliberalism’s legal conquest. Along with rolling back progressive legal principles, neoliberalism needed to also roll out an alternative vocabulary to take its place. This required a more proactive stance for the federal courts and aggressiveness from conservative litigators (Teles, 2010). Neoliberalism could no longer just play defense, in other words. It went on the offensive, constructing and circulating a set of neoliberal arguments that reshaped the US Supreme Court for decades to come.

The discursive features of neoliberal jurisprudence

Elevating the market

To accuse the Warren Court of “overreaching” implied a constitutional betrayal of the American government’s scope and function. Neoliberal jurisprudence framed such a betrayal as an infringement on the freedom and liberty of American citizens. More specifically, neoliberalism sought to roll back government interventions in specific economic areas to produce a market orientation where individuals could compete freely and fairly, unencumbered by interference from the state. As a result, the market became the firm ground upon which freedom, justice, and liberty should be civically constructed. Today, examples of neoliberal market elevation abound in American public conversations: many Americans struggle to talk about the lives saved by the Affordable Care Act apart from the seemingly more relevant fact that healthcare occupies “one-sixth of the economy.” Likewise, Americans cannot talk about the civic value of higher education apart from increased wages college graduates can expect to earn with a degree; Americans cannot talk about how to help areas struck by natural disasters apart from being urged to visit and spend money; Americans cannot talk about why teenage boys should be wary of consuming pornography apart from the amount the women are paid for each sex act; Americans cannot talk about the number of Chinese and Indian people killed by air pollution apart from the billions of dollars of lost labor output each year.

Market elevation then grants moral blessing to existing hierarchies of wealth and power. Note the significant departure from the Warren Court’s assumption that the structural oppression of the marginalized could only be redressed through active legal interventions. In contrast, neoliberalism assumes the wealthy and powerful are wealthy and powerful by virtue of their superior performance in the free marketplace. Their intelligence, character, and work ethic are rewarded in an environment where individuals succeed and fail according to their own merits. Consequently, the marginalized deserve their penury. A significant part of the Supreme Court’s rollback of Warren-era protections included the enshrinement of the marketplace as the final and best arbiter of how wealth should be distributed. Ultimately, such a naturalization of market outcomes undermines the Warren-era principle that the courts have a positive obligation to remedy inequalities and care for the most marginalized.

The acceptance of an elevated market reveals important legal consequences. If the current distribution of resources is natural and fair, the court has no legal justification to infringe on the market to redistribute the fruits of the wealthy’s labor. The rich deserve to be rich and the poor deserve to be poor because of the work of the free market. America is a meritocracy, the argument goes, with people rising in and out of poverty according to their own efforts. If the distribution of wealth is based on personal effort—not random chance or structural forces—then there is no constitutional basis for legal intervention. Of course, the existence of a stable and well-defined underclass would be a powerful counterexample to the belief the American economy is meritocratic. This is where the Warren court sought to intervene, and this is also where neoliberalism needed to tell a fresh—and more compelling—story.

For example, consider the case of San Antonio Independent School District v. Rodriguez in which the Court ruled unequal funding of school districts with property taxes did not violate the Fourteenth Amendment’s Equal Protection Clause (San Antonio Independent School District v. Rodriguez, 1972). The appellees argued partially funding schools with property taxes denied an equal education to children who lived in the poorest districts with the lowest property taxes, as those children were more likely to be poor. The appellees showed that the poorest school district in Texas received US$356 per pupil while the wealthiest district received US$594 per pupil (San Antonio Independent School District v. Rodriguez, 1972). Such unequal educational funding was a violation of the students’ First Amendment rights, preventing students from meaningfully or effectively exercising their First Amendment right to freedom of speech. But the US Supreme Court argued that the group of people affected by the unequal funding did not constitute a coherent and identifiable group whose constitutional rights deserved stricter scrutiny. It was legally (and rhetorically) important for a neoliberal Supreme Court to deny the existence of “the poor.” To be clear, the Court did not deny the existence of individuals who were impoverished. Instead, it denied the existence of the poor as a class distinct from the middle or upper-classes. The Court argued:

[f]irst, in support of their charge that the system discriminates against the ‘poor,’ appellees have made no effort to demonstrate that it operates to the peculiar disadvantage of any class fairly definable as indigent, or as composed of persons whose incomes are beneath any designated poverty level. (San Antonio Independent School District v. Rodriguez, 1972, p. 22)

In order for a group’s rights to be protected under a higher standard of scrutiny, that group needed to have unifying characteristics binding them together. Random or temporary associations did not form the sort of unit that could qualify for enhanced Constitutional protections. The Court contended that the students and families harmed by the unequal funding were too heterogeneous, and their similarities too transient, to be the sort of group whose rights need to be protected by heightened scrutiny. Simply put, a “marginalized” constituency does not count.

The Court rejected the appellees argument because “the absence of any evidence that the financing system discriminates against any definable category of ‘poor’ people [means] the disadvantaged class is not susceptible of identification in traditional terms” (San Antonio Independent School District v. Rodriguez, 1972, p. 26). In order for the current distribution of wealth to be fair, there must not be a well-defined group of “poor” people. In its decision, the Court referred to those living in the poorest school districts as “a large, diverse, and amorphous class, unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts” (San Antonio Independent School District v. Rodriguez, 1972, p. 29). The Court revealed a potent neoliberal tactic here by rejecting the argument that the families in the poorest districts constituted a unique class of persons. This derision is further evidenced by the use of scare quotes around the word “poor” nine times in the decision. As part of its dismissal of the existence of the “poor” as an identifiable class, the Court argued “Defining ‘poor’ families as those below the Bureau of the Census ‘poverty level,’ the Connecticut study found, not surprisingly, that the poor were clustered around commercial and industrial areas with high property taxes” (San Antonio Independent School District v. Rodriguez, 1972, p. 24). In other words, the poor did not receive a substandard education because they happen to live near industrial areas that have high property taxes. Thus, there was no identifiable class of “poor” persons who were systemically disadvantaged. The Court even seemed to suggest being poor might sometimes be an advantage. The quotes are a continual reminder of the skepticism, even contempt, the Court held for the proposition that there was a semi-permanent underclass in America.

Today, such skepticism would surprise no one. The belief that there is not a class of poor people in America is the lynchpin that holds the ruse of the “free” market and neoliberalism together. Consider how effective market elevation is for inhibiting class-based solidarity and political activism. Collective political action often begins with an awakening that a distinct socioeconomic position is being forced upon a group people beyond their control. Market elevation sweeps the legs out from underneath that awakening. In turn, the Court has no grounds for economic intervention.

Expanding the market

San Antonio Independent School District v. Rodriguez indicated that unequal funding was not unconstitutional discrimination as long as every student received a minimally adequate public education. Even if Texas school districts were funded unequally, the Court argued, that was not the sort of inequality requiring positive intervention—a marked departure from the Warren court. Justice Lewis Powell argued, “We have never presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice” (San Antonio Independent School District v. Rodriguez, 1972, p. 116). It was the job of the Court to respond to absolute deprivation rather than relative inequality, in other words. Justice Powell continued:

[w]hatever merit appellees’ argument might have if a State’s financing system occasioned an absolute denial of educational opportunities to any of its children, that argument provides no basis for finding an interference with fundamental rights where only relative differences in spending levels are involved. (San Antonio Independent School District v. Rodriguez, 1972, p. 38)

It seemed relative inequality only became a significant problem if it became intergenerational. If the relative inequality of one generation became the relative inequality of their children, then the effects can compound over the years. It became clear why it was so important for the US Supreme Court to claim the people living in the poorest school districts were an amorphous class of people. Since people moved in and out of underfunded school districts, and in and out of poverty, the unequal access to education did not become a permanent intergenerational problem. Thus, the Court had no constitutional basis to intervene.

Even families were not immune from the Court’s new reluctance to redress relative inequalities. In the 1960s, an Aid to Families with Dependent Children (AFDC) program in Maryland gave needy families a monthly benefit that was partially determined by the number of children. Families with more children would receive larger payments, but each successive child brought a smaller increase in benefits until a limit was reached. Two families sued Maryland arguing the formula discriminated against large families and violated the Equal Protection Clause of the Fourteenth Amendment (Dandridge v. Williams, 1970). While the Court did not deny the harm done to those families because of the benefits cap, it argued the resulting inequality was not the sort that merited legal action. Writing for the majority, Justice Potter Stewart defended Maryland, arguing, “[i]t is enough that the State’s action be rationally based and free from invidious discrimination. The regulation before us meets that test” (Dandridge v. Williams, 1970, p. 487). As long as the law met a minimal non-discrimination standard, it was constitutional and the Court would decline to intervene. This argument was part of a broader refusal by the Court to intervene in problems arising from the distribution of wealth. Justice Steward narrowed the Court’s scope of concern because “the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court” (Dandridge v. Williams, 1970, p. 488). The Court defined inequality and discrimination in a way that almost entirely absolved it of intervening in problems arising from an unequal distribution of resources.

In its efforts to naturalize the current distribution of wealth, the Court invoked common stereotypes about large families collecting public benefits. In defending the cap on benefits, the Court listed state interests served by reducing benefits for larger families, such as “encouraging gainful employment” and “providing incentives for family planning” (Dandridge v. Williams, 1970, p. 484). In other words, the benefits were deliberately inadequate to encourage poor people to have fewer children and return to work quicker. The argument relied on the canard that poor families were more likely to be lazy and more likely to have more children to exploit the welfare system. The Court was not required to intervene in whatever inequality resulted in capping benefits for large families because the inequality was the consequence of their own immoral behavior.

The Court did not stop with subjecting the family to the dictates of the market. Political communication and advertisements must also be subject to market forces. The 2010 Citizens United decision rolled back regulations governing political advertising to make politics more market-like. The case centered around a federal law that restricted independent expenditures by both nonprofit and for-profit corporations. The conservative nonprofit organization Citizens United produced an anti-Hillary Clinton video and sought to advertise it in the run-up to the 2008 Democratic presidential primary (Citizens United v. Federal Election Commission, 2010). Federal law at the time prohibited both electioneering communication too close to the date of the primary as well as independent expenditures advocating for or against specific candidates. The Court ruled 5-4 that these restrictions violated the First Amendment (Citizens United v. Federal Election Commission, 2010).

The Court justified striking down these restrictions in the name of protecting a free political marketplace of ideas. More information is always preferable to less information, the argument goes, because it helps voters (i.e. consumers) make a more rational decision within the market. Justice Kennedy, writing for the majority, argued that in “suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests” (Citizens United v. Federal Election Commission, 2010, pp. 38–39). Kennedy framed such independent expenditures not as an attempt to curry favor with or gain access to politicians, but as a good faith attempt to persuade the voting public. There was no need to worry about the corrupting effects of such expenditures because a “corporation, or any other speaker, [being] willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials,” (Citizens United v. Federal Election Commission, 2010, p. 44). The Court appealed to a free market logic of persuasion to defend its deregulation. Chief Justice Roberts made a similar argument in his concurring opinion. He rejected limits on independent expenditures because “[a] speaker’s ability to persuade, however, provides no basis for government regulation of free and open public debate on what the laws should be” (Citizens United v. Federal Election Commission, 2010, p. 11). Both justices framed the ability to spend money on political advertisements as persuading voters.

Independent expenditures, according to the Court, were neither distortionary nor corrupting. Instead, expenditures are arguments that attempt to persuade the voting public—individuals are free to accept or to reject the arguments on their merits. This faith in the openness and fairness of the marketplace of ideas is reflected in Kennedy’s description of the founding of the United States. In characterizing the state of political speech in the eighteenth-century, Kennedy asserted “speech was open, comprehensive, and vital to society’s definition of itself; there were no limits on the sources of speech and knowledge” (Citizens United v. Federal Election Commission, 2010, p. 37). Unequal access to the marketplace of ideas was not a concern for the Court. In a maximally free, minimally regulated marketplace, ideas succeed or fail based on their merits.

To defend this idealistic conception of the marketplace of ideas the Court had another challenge. If there were no limits on independent expenditures by corporations, then does that give more power in the marketplace of ideas to those who are more successful in the economic marketplace? The answer from the Court was a resounding “No!” Here is why: “[a]ll speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech” (Citizens United v. Federal Election Commission, 2010, p. 35). Because everyone uses money to fund their speech, regulating how or when that money is used was futile. By extension, any disparities in the amount of money an entity has to fund its speech was beyond the purview of the Court.

As a result, the neoliberal conquest of the US Supreme Court functioned to entrench existing divisions of wealth and reaffirm hierarchies of power. If the Court refused to take action to address inequalities in how people access markets and focused on maximizing freedom within the market, then those who already have wealth, power, or information would be able to leverage those advantages into even greater wealth, power, and information. Those who had a better education, were born wealthy, or had more socioeconomic power would have nearly insurmountable advantages in such a “free” market. These advantages accrue intergenerationally and compound over the years. The neoliberal conquest of the Supreme Court rhetorically props up a fictional economy where actors are maximally free to operate in the marketplace and will succeed or fail according to their own efforts. The net effect of their rulings, however, has been to favor the enrichment of established powers.

Advertising the market

Finally, if the Courts should aim to facilitate market supremacy (and the hierarchies of power it produces) neoliberal jurisprudence had to roll back legal interventions into the arena of speech. Consider the 1977 case of Bates v. State Bar of Arizona. At the time, the state bar of Arizona banned advertising by lawyers. Bates argued the law violated his First and Fourteenth Amendment rights. The Supreme Court sided with Bates and ruled barring lawyers from advertising their services and prices violated the First Amendment. The crux of their ruling was this: economic speech, in the form of advertising, was protected by the Constitution because of the important function it played in America’s free market system. The Court argued, “Commercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system” (Bates v. State Bar of Arizona, 1977, p. 365). The Court went further, contending that protecting the free flow of commercial speech might be more important than protecting political speech. The First Amendment’s protections are vital for free markets because, “the consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue” (Bates v. State Bar of Arizona, 1977, p. 365). In other words, it is important for commercial speech to be minimally regulated because access to advertising is key to keeping markets maximally free.

The neoliberal turn of the US Supreme Court is illuminated in their interpretation of advertising. The Court suggested that ads provided valuable information to consumers helping them make rational decisions in the allocation of scarce resources in a free market economy. Writing for the majority, Harry Blackmun argued, “It seems peculiar to deny the consumer, on the ground that the information is incomplete, at least some of the relevant information needed to reach an informed decision” (Bates v. State Bar of Arizona, 1977, p. 375). Protecting consumers from misleading or inaccurate advertisements became interpreted as an infringement on the freedom and liberty of the advertiser. Of course, advertisements are often misleading or inaccurate. Advertisers have a wide array of techniques for presenting information, even if it is true in a very narrow sense, that it misleads or misinforms customers about the nature of the product or service. The Court recognized this as a possibility, but dismissed it as not requiring further intervention. Of course, it is naïve to assume that any amount of incomplete information is preferable to no information. Accurate but incomplete information can easily be used to make misleading, untrue, or unethical arguments. As long as people have access to some minimal amount of education and some minimal amount of advertising information, any preexisting or resulting inequalities are understood to simply be market forces at work.

The Court’s interpretation went far beyond lawyers advertising on bus-stop benches. The US Supreme Court furthered this neoliberal principle in its 2011 decision in Sorrell v. IMS Health. Pharmaceutical companies often buy prescriber-identifying information for marketing purposes, including what medications and in what doses a doctor prescribes. That information is given to “detailers” who take it and use it to sell expensive, name-brand drugs to doctors (Sorrell v. IMS Health, 2011). Vermont banned the practice, prohibiting the selling of prescriber-identifying data for marketing or drug promotion. The Supreme Court ruled against Vermont, ruling “[s]peech in aid of pharmaceutical marketing … is a form of expression protected by the Free Speech Clause of the First Amendment” (Sorrell v. IMS Health, 2011, p. 1). Although several decades have passed and the makeup of the Court changed, the reasoning in the Sorrell decision closely mirrored the reasoning in the Bates decision. The decision interpreted marketing by pharmaceutical companies as providing accurate information that increased the effectiveness of doctors’ medical decisions. As part of its rejection of Vermont’s law, the Court contended, “[T]he law’s express purpose and practical effect are to diminish the effectiveness of marketing by manufacturers of brand-name drugs” (Sorrell v. IMS Health, 2011, p. 9). The Court continued “Vermont’s law thus has the effect of preventing detailers—and only detailers—from communicating with physicians in an effective and informative manner” (Sorrell v. IMS Health, 2011, p. 9). Here again we see the argument that marketing provides important and accurate information, which increases the ability of markets to rationally allocate scarce resources. Inequalities in the ability to access or use information are beyond the purview of the Court and would only serve to make markets less free.

As long as everyone has maximally free access to markets, the markets themselves will serve a regulatory function. More specifically, there is minimal need to outlaw misleading advertising because the free market will reward honest companies and punish dishonest ones. The conditions under which people come to access markets—including inequalities in wealth, power, information, and education—are outside the purview of the courts. However, markets do not arise independently of the laws that shape them (Lazzarato, 2009; Van Horn & Mirowski, 2009). Only seeking to maximize access to markets while refusing to examine the broader inequalities limiting how people are engaging in those markets serves to entrench existing inequalities. Again, consider these cases in relation to the “free” market ruse neoliberalism promotes. Neoliberalism sought to further the argument that the relationship between the state and the market is flawed. These cases are supposed to function as prime examples of that flaw. Redressing that relationship demands less state interference at sites of profitable corporate intervention. But less state interference does not apply where regulation protects corporate profitability, including legal protections for pharmaceutical patents or licensing requirements. This inconsistency is revealing. State interference is a given in an advanced industrial economy. The question is not if the state will intervene, but on whose behalf? The Warren Court was transparent with how it answered this question: it prioritized equality over liberty, and thus, rationalized active legal interventions on behalf of society’s most marginalized. Conversely, the US Supreme Court cases examined here reflect a rolled back version of neoliberalism where protecting the free speech of corporations is more important than protecting the wellbeing of consumers.

Implications and conclusions

The effectiveness of neoliberal arguments in reshaping the Supreme Court must be understood as a product of the dynamic oscillation between public messaging and public beliefs. Recall David Zarefsky (2004) encouraging scholars to examine how arguments emerge in alignment with shifting political realities to reshape definitions and plead particular causes. Following Zarefsky’s lead, we are reminded that neoliberalism’s legal conquest was not simply the result of effective arguments operationalized by neoliberal politicians and their sympathetic American Supreme Court appointees. The Court does not operate like that. As Adam Winkler (2011) wrote, “Historically the Supreme Court lags behind social movements rather than leads them” (p. 296). This essay’s findings encourage any exploration into the relationship among neoliberal jurisprudence, the composition of the US Supreme Court, and the arguments the Court produces to account for the wider contextual factors influencing what is ultimately ruled at 1 First Street in Washington D.C.

With that qualifier in mind, this essay encourages further scholarship that can theorize neoliberal discourses in the public sphere. Future scholarship should pay close attention to both the composition of the US Supreme Court and the arguments produced to justify neoliberal jurisprudence. The composition of the Court surely informs the influence of neoliberal thought as a backdrop for adjudication. The current US Supreme Court is made up of the most business friendly composition in the last several generations. Justices like Antonin Scalia were extremely friendly to the neoliberal project (Jackson, 2016). Scholars studying Scalia made clear that he espoused a philosophical viewpoint whereby individual freedoms have been historically linked to a free market economic perspective that “eschews contemporary distinctions that separate property and civil rights” (Schultz & Smith, 1996, p. 6). In other words, for Scalia, the free market presupposed other broad political freedoms for individuals. Freedoms such as free speech and property rights “appear linked to the free market and respect for economic autonomy” (Schultz & Smith, 1996, p. 7). At the same time, he was emphatically against judicial intervention in economics and economic policy. After Scalia unexpectedly died in 2016, and Neil Gorsuch ended up filling his seat, it seems the neoliberalism’s conquest of the US Supreme Court will not slow down any time soon. Future Donald Trump nominees will likely reflect neoliberal discourse (Denbow, 2017). Communication scholars are well equipped to theorize how the arguments put forth to justify continued neoliberal legal interventions resonate with wider evolutions in the public sphere.

The arguments produced by such judges will also be worthy of future scholarship. The extant research points to the deployment of vocabularies organized around a “dead constitution,” “constitutional originalism,” and the “original meaning of the Constitution” as examples of this rolled out neoliberal vocabulary (MacLean, 2017; Teles, 2010; Toobin, 2002). The extant literature has also shown how these arguments developed in legal foundations like the Olin Foundation, Institute for Justice, Center for Individual Rights, Law and Economics Center, Pacific Legal Foundation, and the Federalist Society; individual icons like Antonin Scalia and Clarence Thomas, along with specific cases and rulings such as Lochner, Kaldor-Hicks, and Kelo vs. City of New London have been examined. Looking back, we can now see how Antonin Scalia’s championing of constitutional originalism elevated a fringe legal theory—a theory that was once widely rejected—into a position of discursive dominance by which neoliberalism now draws historical and intellectual prestige. Originalism was long thought to be a solution in search of a problem. Most legal scholars thought originalism contradicted the aims of America’s nation’s framers who attempted to carve out space for a loose construction of legal frameworks to uphold the spirit of the law in the face of evolving social conditions (Winkler, 2011). Rather than leverage the “original intent” of America’s founders, originalism was known to be an ideological ruse aimed at preventing the state from infringing on the profit-seeking capacities of big business. The instrumental effect of the relationship between originalism and neoliberalism will be worthy of future consideration for scholars of communication and the public sphere.

However, this essay’s findings also encourage any exploration into the relationship among neoliberal jurisprudence, the composition of the US Supreme Court, and the arguments the Court produces to begin with the necessary nuance and humility. The emergence of neoliberal jurisprudence cannot be understood apart from the public knowledge and beliefs from within which it operates. This essay has argued that neoliberal legal arguments became more widely acceptable as conservatives in the 1970s and 1980s worked hard to restrain the liberalism of the American New Deal and Great Society programs. Something changed after the Long Sixties, and it was not simply a more sophisticated set of arguments from neoliberal advocates. The Long Sixties helped to hail a disparate set of individuals into a constitutive community united by fears of an overreaching and activist court. The ground was tilled, in other words, for the acceptance of neoliberal arguments already in circulation. This history should encourage scholars of communication and the public sphere to pay close attention to the dynamic oscillation between messaging and context. Communication scholars simply cannot analyze one without the other.

To conclude, briefly consider where such a rhetorical reservoir might be found. An American perspective marked by collective hubris shaped the context for the emergence of the Warren Court’s anti-neoliberal rulings of the 1950s and 1960s. An American postwar spirit of civic confidence and economic growth provided a firm foundation from which an active, robust set of government interventions improved the lives of many Americans—not just the rich and powerful. Neoliberal discourse and its promotion of conjoint depletion saps the collective will for maintaining civic confidence and political engagement. It encourages everyone to retreat from the public sphere and work hard to accumulate as much as they can in a zero-sum fight to the finish. US President Donald Trump and his “American carnage” reflect those neoliberal demands. At the same time, the material conditions sparking civic confidence and economic growth in the middle decades of the twentieth-century are not much different than our present context. We are living in the wealthiest, safest, and most peaceful moment in human history—even when acknowledging the dangers of the Trump presidency, wealth inequality, police brutality, and the threat of terrorism (Pinker, 2018). Strong, robust, and active government interventions are an important component of improving conditions. As Americans in the 1950s and 1960s were encouraged to support strong, robust, active government interventions, so can citizens all over the world. Out of this context an alternative vocabulary may emerge. We leave it to future researchers to articulate that alternative vocabulary, but we hope that this essay lends insight into both the neoliberal messaging and the social conditions such a vocabulary must define itself against.