Back in 1994, after the Louisiana Supreme Court ruled that oil giant BP owed back taxes to Plaquemines Parish, the Louisiana Association of Business and Industry (LABI) urged its member corporations to contact the justices to complain. A few months later, after a LABI-backed candidate won the state Supreme Court election, the court unanimously overturned its ruling against BP — a decision that drained millions of dollars in tax revenue from Plaquemines Parish and its schools.
Before intervening on BP's behalf, LABI had been complaining about the influence of trial lawyers in judicial elections and threatening to exert more political pressure over judges. LABI had already established four corporate-funded political action committees to exercise its clout in the state legislature; in the mid-1990s, the PACs began giving large contributions to their preferred judicial candidates.
In 1996, LABI took its judicial influence operation to the next level: It began rating judges based on whether they ruled for or against corporate interests. After national media reported on LABI's aggressive tactics, the group ceased evaluating every justice and stopped pressuring them to rule a certain way in specific cases.
A group in Mississippi is getting ready to do the same thing. The new Mississippi Civil Justice Alliance was established by the Business and Industry Political Education Committee (BIPEC), which spends big in judicial races through an affiliated PAC funded by local business groups as well as fossil-fuel interests, such as Chevron and Koch Industries. The new group is monitoring rulings by the state Supreme Court that could lead to more corporations being held liable for injuries to workers, consumers, or the environment.
These efforts are happening at the same time as President Trump and the Republican-controlled U.S. Senate are rapidly confirming pro-business judges to the 5th U.S. Circuit Court of Appeals, which hears cases from Louisiana, Mississippi, and Texas. For example, one new 5th Circuit judge, Andrew Oldham, gave a speech in which he suggested the U.S. Environmental Protection Agency may be "fundamentally illegitimate."
Eroding judicial legitimacy
The strategy of rating judges based on whether their rulings benefit businesses was refined by Ron Howell, who served as director of state affairs for Koch Industries back in the 1990s, according to a 2001 article by law professor John Echeverria. In 1996, Howell helped establish Citizens for Judicial Review (CJR), which aimed to rate judges in eight states where Koch happened to have polluting manufacturing facilities, including Alabama, Arkansas, Louisiana, Mississippi, Tennessee, and Texas. CJR's letter to prospective donors predicted that its evaluations would "have a very significant impact on judiciary behavior and create positive cost results."
BIPEC led the judicial evaluation effort in Mississippi, working closely with CJR. Its first evaluation, released in 1996, gave only two of the state's nine Supreme Court justices pro-business ratings. But the 165 cases reviewed were a small fraction of the court's rulings in the span of a decade, and one of the justices said that CJR's cherry-picked sample did not reflect their actual rulings.
In later elections, BIPEC called on its members to contribute to "business-minded" Supreme Court candidates, including a former Mississippi state legislator who sponsored a tort reform bill that put new limits on lawsuits. As the effort to rate judges was underway, Mississippi's judicial elections also became the target of millions of dollars in undisclosed spending by the Chamber of Commerce and other groups seeking to make it harder to sue corporations.
The efforts to elect business-friendly judges paid off with favorable rulings for companies. They also resulted in a new style of judicial politics — money-soaked races, vicious attack ads, judicial candidates taking positions on tort reform and social issues — that eroded the legitimacy of Mississippi's courts.
By 2001, a state commission created to study how Mississippi elects its judges found "a pervasive perception by the public that the Mississippi Judiciary is no longer independent, but rather is subject to the influence of special interest groups or individuals who donate money to their election campaigns." The commission called for stronger campaign finance disclosure laws, longer terms for judges, and stricter limits on judicial campaign contributions.
As they've intervened in judicial elections, LABI and BIPEC have also successfully lobbied state legislators for a wide range of laws making it harder to sue corporations. In her 2006 book "Blocking the Courthouse Door," journalist Stephanie Mencimer describes how the campaign to limit lawsuits used racially tinged appeals and focused on majority-minority counties like Jefferson County, Mississippi, where the population is over 85 percent African-American.
Both Louisiana and Mississippi now have strict limits on damages in injury lawsuits, for example. These limits are touted as a way to stop frivolous lawsuits but apply only in cases with the most severe injuries. In 2014, the Louisiana legislature passed a LABI-backed bill that ended a lawsuit against 97 oil and gas companies for damaging the state's coastline. And last year, BIPEC rated Mississippi legislators on their position on laws to speed up eviction proceedings, limit consumer lawsuits, and remove local government authority to regulate plastic bags.
The groups have made no secret of their goal in evaluating judges. When BIPEC announced its new judicial scorecards, CEO Derek Easley said the effort is intended to "protect tort reform laws." He also raised concerns about recent rulings that he said could be "the beginning of challenging the constitutionality" of limits on lawsuits filed by injured people. BIPEC offered a similar justification for its tactics in 1996.
Sue Lincoln, the editor of Bayou Brief, a nonprofit news outlet in Louisiana, compared the rating of judges by corporations with a financial stake in judicial rulings to sports teams rating referees. "LABI has made no secret of its desire to control Louisiana's legislative branch," she noted, and with this new initiative, "it's clear they want to own the judicial branch, as well."